CLA-2 CO:R:C:T 956186 ch
Sivoush Nayyeri
Kusha, Incorporated
19782 MacArthur Boulevard
#280
Irvine, California 92715
RE: New York Ruling Letter 892897 affirmed; tariff
classification of a burlap bag; shopping bag; sacks and
bags, of a kind used for the packing of goods; GRI
5(b).
Dear Mr. Nayyeri:
This is in response to your letter of March 31, 1994,
requesting reconsideration of New York Ruling Letter (NYRL)
892897, dated December 22, 1993. NYRL 892897 concerned the
tariff classification under the Harmonized Tariff Schedule of the
United States (HTSUS) of a burlap bag. A sample was provided to
this office for examination.
FACTS:
The submitted sample is a woven burlap bag composed of jute
fibers, which measures approximately 14 1/2 inches by 12 inches.
It features an open top and possesses double braided burlap
handles. Its sides are printed in multi-colors with a design and
identifying information such as "Basmati Rice" and "Aged Rice."
In addition, the bag states that its contents are the "product of
India" and that the rice weighs 5 Kilograms (11 lbs.). You
indicate that the rice is imported in 44 pound burlap bags.
After importation, the rice is repacked into the instant bag for
sale at retail.
In NYRL 892897, the bag was classified in heading 4202,
HTSUS, which provides in part for shopping bags.
ISSUE:
Whether the instant burlap bags are classifiable in heading
4202, HTSUS, which provides in part for shopping bags; or heading
6305, HTSUS, which provides for sacks and bags, of a kind used
for the packing of goods?
LAW AND ANALYSIS:
Heading 6305, HTSUS, provides for sacks and bags, of a kind
used for the packing of goods. The Explanatory Note to this
heading states, in pertinent part, that:
This heading covers textile sacks and bags of a kind
normally used for the packing of goods for transport,
storage or sale.
These articles, which vary in size and shape, include
in particular flexible intermediate bulk containers,
coal, grain, flour, potato, coffee or similar sacks,
mail bags, and small bags of the kind used for sending
samples of merchandise by post. The heading also
includes such articles as tea sachets. (Emphasis
added).
Thus, heading 6305 encompasses sacks and bags used for the
packing of goods for sale. These bags may come in various sizes
and include sacks for fungible goods such as coal, grain, flour,
potatoes or coffee. The instant bag is composed of jute, which
is suitable for packing rice. In addition, the bag is sold at
retail with its contents and is appropriately labeled for this
purpose. Accordingly, the burlap bag appears to be classifiable
in heading 6305, HTSUS.
Heading 4202, HTSUS, provides in part for shopping bags.
The burlap bag possesses the physical characteristics of a
shopping bag in terms of its size, ability to hold one's
purchases and the presence of handles. Moreover, it is of
durable construction and appears to be designed for prolonged
use. The bag features an attractive design which may be regarded
as advertising for the manufacturer of the rice. We note that it
is common practice to display the name of the manufacturer and
the product on shopping or tote bags. The article is similar to
"environmental" bags, which are often sold as alternatives to
plastic shopping bags. Hence, we conclude that the burlap bag is
prima facie classifiable as a shopping bag of heading 4202,
HTSUS.
The scope of heading 6305 is restricted to bags "of a kind
used for the packing of goods." The Explanatory Note to this
heading specifies that it covers textile sacks and bags "of a
kind normally used for the packing of goods." In this regard, we
note General Rule of Interpretation (GRI) 5(b), HTSUS, which
pertains to the tariff treatment of packing materials and
containers entered with the goods:
Subject to the provisions of Rule 5(a) above, packing
materials and packing containers entered with the goods
therein shall be classified with the goods if they are
of a kind normally used for packing such goods.
However, this provision is not binding when such
packing materials or packing containers are clearly
suitable for repetitive use. (Emphasis added).
Thus, packing containers of GRI 5(b) which are not "of a kind
normally used for packing such goods" are usually classified
separate from their contents. GRI 5(b), HTSUS, is the successor
provision to General Headnote and Rule of Interpretation 6(b)(i)
of the prior tariff, the Tariff Schedules of the United States
(TSUS), which concerned "containers of usual types ordinarily
sold at retail with their contents."
In Crystal Clear Industries v. United States, United States
Court of International Trade, Slip Op. 94-15, the Court treated
GRI 5(b), HTSUS, and General Headnote and Rule of Interpretation
6(b)(i), TSUS, as largely analogous provisions. In that
decision, the Court cited with approval the legislative history
relating to General Headnote and Rule of Interpretation 6(b)(i),
TSUS:
The concept of "usual" containers includes a variety of
containers such as plastic envelopes for carrying
rainwear when not in use, cases designed for electric
shavers, and tobacco tins, which may continue to be
used by the purchaser to "house" the original contents
but which, when that purpose has been fulfilled, are
usually discarded because of their lack of durability
or their general unsuitability for other uses. On the
other hand, this concept does not include containers,
even though sold at retail with their contents, if such
containers are designed to have significant uses quite
apart from their original contents. For example,
humidors filled with tobacco, miniature cedar chests
containing cigars or candy, and doll houses filled with
confections would not be regarded as "usual"
containers. (Emphasis added).
Citing H.R. Rep. No. 342, 89th Cong., 1st Sess., at 5. Thus
"usual" packing (or packing "of a kind normally used for packing"
under the HTSUS) is generally discarded as it is insubstantial or
is unsuitable for other uses. On the other hand, "unusual"
packing is suitable for other uses and may be retained by the
purchaser after its original purpose has been fulfilled.
As both General Rule of Interpretation 5(b), HTSUS, and
heading 6305, HTSUS, relate to packing "of a kind normally used
for the packing of goods," the legislative history set forth
above bears on the scope of heading 6305. Although the burlap
bag functions as packing for rice, it is of a substantial
construction. In addition, its physical characteristics suggest
that it will be retained for use as a shopping bag and will not
be discarded once the rice has been consumed. For this reason,
it is not a bag of a kind normally used to pack this merchandise.
Consequently, it is excluded from the scope of heading 6305,
HTSUS. As heading 4202, HTSUS, is the most specific provision
describing the bag, it is classifiable as a shopping bag.
HOLDING:
NYRL 892897 is hereby affirmed. The subject merchandise is
classifiable under subheading 4202.92.2000, HTSUS, which provides
in part for travel, sports and similar bags: with outer surface
of textile materials: of vegetable fibers and not of pile or
tufted construction: other. The applicable rate of duty is 6.5
percent ad valorem. The textile quota category is 870.
The designated textile and apparel category may be
subdivided into parts. If so, visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are the subject of frequent negotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report on Current Import Quotas (Restraint Levels), an issuance
of the U.S. Customs Service, which is updated weekly and is
available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact the local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division