CLA-2 CO:R:C:T 954715 ch
U.S. Customs Service
Regional Commissioner
6 World Trade Center
Room 716
New York, New York 10048
Re: Application for further review of Protest No. 1001-91-
107314 under 19 U.S.C., section 1514(c)(2);
classification of bags composed of plastic sheeting;
designed for prolonged use.
Dear Sir:
This is a decision on application for further review of a
protest timely filed by J.M. Rogers on behalf of LPS Industries,
Incorporated. We have considered the protest and our decision
follows.
FACTS:
The two submitted samples are bags which are identified as
the Polyfolio and the Slidergrip. They are composed of clear
plastic sheeting which has been folded in the middle and heat
sealed at the edges. The protestant indicates only that they
will be used as "retail packaging."
The Polyfolio measures approximately 15.75 inches by 10.50
inches and features a heavy gauge plastic tongue and groove
closure operated by means of a metal slider. The sheeting
material is approximately 5.5 mil thick.
The Slidergrip measures approximately 7.75 inches by 6
inches and possesses a light gauge tongue and groove closure
operated by a plastic slider. The sheeting material is
approximately 5.5 mil thick.
The merchandise was entered under Heading 3923, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), which
provides for articles for the conveyance or packing of goods, of
plastics. However, the bags were classified in Heading 4202,
HTSUSA, which provides, inter alia, for attache cases,
briefcases, and similar containers.
ISSUE:
What is the proper tariff classification for the Polyfolio
and the Slidergrip bags?
LAW AND ANALYSIS:
Heading 4202, HTSUSA, provides for:
Trunks, suitcases, vanity cases, attache cases,
briefcases, school satchels, spectacle cases, binocular
cases, camera cases, musical instrument cases, gun
cases, holsters and similar containers; traveling bags,
toiletry bags, knapsacks and backpacks, handbags,
shopping bags, wallets, purses, map cases, cigarette
cases, tobacco pouches, tool bags, sports bags, bottle
cases, jewelry boxes, powder cases, cutlery cases and
similar containers, of leather or of composition
leather, of sheeting of plastics, of textile materials,
of vulcanized fiber or of paperboard, or wholly or
mainly covered with such materials or with paper.
By its terms, Heading 4202, HTSUSA, encompasses the enumerated
articles and containers similar thereto.
Although the protestant states that the instant goods are
bags used as "retail packing," they appear to be designed to
carry or store office, school or other like materials. Hence,
they perform a function similar to attache cases, briefcases or
school satchels. For this reason, we conclude that the Polyfolio
and Slidergrip bags are similar to certain enumerated containers
in heading 4202, HTSUSA.
However, Chapter 42, Note 2(a), HTSUSA, states that Heading
4202 does not cover "bags made of sheeting of plastics, whether
or not printed, with handles, not designed for prolonged use
(heading 3923)." By implication, bags composed of plastic
sheeting which are designed for prolonged use may be classified
in Heading 4202. As the instant merchandise are bags composed of
plastic sheeting, we must determine whether they have been
"designed for prolonged use." The HTSUSA does not define this
phrase. Therefore, we must turn to our administrative precedent
for guidance.
In Headquarters Ruling Letter (HRL) 953077, dated April 26,
1993, we excluded shopping bags composed of plastic sheeting from
heading 4202, HTSUSA, despite the fact they could be re-used
"several" times. We reasoned that the bags were similar to
plastic or paper shopping bags which were capable of re-use, but
intended for a single use. Polyethylene plastic bags used at
retail to pack groceries to transport purchases home have
routinely been excluded from heading 4202, HTSUSA. See HRL
082831, dated February 26, 1990; HRL 082998, dated October 23,
1989; HRL 083069, dated August 14, 1989; HRL 081876, dated
November 22, 1988. As these shopping bags were intended only to
carry groceries home, they were not designed for prolonged use.
Similarly, in HRL 082218 and HRL 082659, both dated February 27,
1990, we excluded from heading 4202 certain polyethylene plastic
bags used by hospitals to store the personal belongings of
patients. We concluded in those decisions that the bags "could
not be reused."
In the foregoing decisions, bags of sheeting of plastics
intended for a single use were excluded from heading 4202,
HTSUSA, by virtue of Note 2(a), Chapter 42, HTSUSA. However, in
this case we are of the opinion that the bags have been designed
for repetitive use. We note that these containers possess tongue
and groove closures with metal and plastic slides that will
withstand many uses. The plastic material is of a gauge
sufficient to resist rips and tears. In sum, they are more
substantial than the shopping and patient bags described above.
The bags at issue are similar to pencil cases or pouches of
plastic which we have classified in heading 4202 when designed
for travel. See HRL 087026, dated July 24, 1990. Accordingly,
the Polyfolio and Slidergrip bags are classified in heading 4202,
HTSUSA.
HOLDING:
The subject merchandise is classifiable under subheading
4202.12.2035, HTSUSA, which provides, inter alia for attache
cases, briefcases and similar containers: with outer surface of
plastics. The applicable rate of duty is 20 percent ad valorem.
Therefore, based on the foregoing discussion, you are instructed
to deny the protest in full. A copy of this decision should be
attached to the CF 19 Notice of Action to satisfy the notice
requirement of section 174.30(a), Customs Regulations.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John A. Durant, Director