CLA-2 OT:RR:CTF:TCM H275824 MAB
TARIFF NO: 6305.32.0010
The Bag Connection
1013 Tamarac Drive
Carpentersville, IL 60110
Attn: Customs Specialist
RE: Revocation of HQ 955639; tariff classification of reusable bags of woven polypropylene strips used for yard waste and recycling
Dear Customs Specialist:
On April 5, 1994, U.S. Customs and Border Protection (CBP) issued HQ 955639. This ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of reusable bags of woven polypropylene strips used for yard waste and recycling. We have reviewed additional information and have found HQ 955639 to be in error with respect to the tariff classification.
FACTS:
In HQ 955639, CBP stated in pertinent part, the following:
You submitted a sample of a reusable yard waste bag of woven polypropylene strips which are less than 5 mm in width; the bag measures approximately 41 inches by 14.75 inches by 13.5 inches when fully expanded. The bag is open at the top with snaps as closures which are placed in a position to permit the top to expand to its fullest width. Located near the bottom of the bag at both sides are pockets with hook and loop closures, which will be filled approximately one pound of ballast (such as sand) to prevent the bags from being blown away after they have been emptied. To facilitate carrying the bag, two web strap handles are sewn to the top of the bag and two web strap handles are attached to each bottom pocket. The bags will be used initially by the City of Seattle to hold yard waste or other articles which will be recycled. Eventually the bags will be distributed to the public and used by homeowners to store yard waste and left at curbside for pickup by the city recycling trucks.
In addition, we do not believe that the subject bag is classifiable in heading 6305….[t]he bag at issue is not used for commercial merchandise and is not for merchandise being transported or stored for sale. It cannot be considered a sack or bag, for the packing of goods, and is therefore not classifiable in Heading 6305.
ISSUE:
Whether the reusable bags of woven polypropylene strips used for yard waste and recycling are considered bags under heading 6305, HTSUS, or as other made-up articles of heading 6307, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions at issue are as follows:
Sacks and bags, of a kind used for the packing of goods:
* * *
6307 Other made up articles, including dress patterns:
* * *
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that:
In the absence of special language or context which otherwise requires:
… a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 63.05 provides, in pertinent part, as follows:
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.
Subheading 6305.32
Flexible intermediate bulk containers are usually made of polypropylene or polyethylene woven fabrics and generally have a capacity ranging from 250 kg to 3,000 kg. They may have lifting straps at the four top corners and may be fitted with openings at the top and bottom to facilitate loading and unloading. They are generally used for packing, storage, transport and handling of dry, flowable materials.
* * *
EN 63.07 provides, in pertinent part, as follows:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
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Heading 6305, HTSUS, covers sacks and bags of a kind used for the packing of goods. In The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, 1394 n. 23 (Ct. Int’l Trade 2008), the Court of International Trade (CIT) described different types of HTSUS provisions as follows:
A “use” provision is “a provision describing articles by the manner in which they are used as opposed to by name,” while an eo nomine provision is one “in which an item is identified by name.” Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003). And there are two types of "use" provisions -- "actual use" and "principal (formerly known as "chief") use." An "actual use" provision is satisfied only if "such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the, goods are entered." See Additional U.S Rule of Interpretation ("ARI") 1(b) (quoted in Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998)). In contrast, a "principal use" provision functions essentially "as a controlling legal label, in the sense, that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use." Clarendon Mktg., 144 F.3d at 1467.
In Primal Lite, Inc. v. United States, 22 C.I.T. 697, 700 (1998), the CIT described one method to identify principal use provisions as follows:
The use of the term "of a kind" is nothing more than a statement of the traditional standard for classifying importation[s] by their use, namely, that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs.
Heading 6305, HTSUS, includes the tariff term “of a kind,” which means that it is a principal use provision. Under Additional U.S. Rule of Interpretation 1(a) (AUSR 1(a)), tariff classification under a principal use provision must be determined in accordance with the use in the United States of that class or kind to which the imported goods belong.
Thus, in order to be classified as a sack or bag of a kind used for packing, the reusable bags of woven polypropylene strips used for yard waste and recycling must belong to the same kind or class of goods as those used for packing. In United States v. Carborundum Co., 536 F.2d 373, 377 (CCPA 1976) (Carborundum), the U.S. Court of Customs and Patent Appeals stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. Id. While these factors were developed under the Tariff Schedule of the United States (predecessor to the HTSUS), the courts have also applied them under the HTSUS. See, e.g. Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), Essex Manufacturing, Inc. v. United States, 30 C.I.T.1 (2006).
In regard to the physical characteristics of the reusable waste bags of woven polypropylene strips used for yard waste and recycling, they have the same characteristics of a flexible intermediate bulk container (FIBC) in that they consist of woven polypropylene and polyethylene fabric strips which are less than 5 mm in width. They are said to measure 41 inches by 14.75 inches by 13.5 inches when fully expanded. The bags are open at the top with snaps as closures which are placed in a position to permit the top to expand to its fullest width. Located near the bottom of the bags on both sides are pickets with hook and loop closures, which will be filled with approximately one pound of ballast (such as sand) to prevent the bags from being blown away after they have been emptied. To facilitate carrying the bags, two web strap handles are sewn to the top of the bags and two web straps handles are attached to each bottom pocket. In terms of channels of trade, the City of Seattle would initially use the bags to hold yard waste or other article which will be recycled. Eventually the bags were to be distributed to the public. As such, the ultimate users of the bags will use them to store yard waste and left at curbside for pickup by the city recycling trucks. The bags are environmentally practical for use to pack and transport this recycled material and are recognizable for this use.
CBP has issued numerous rulings which describe and classify FIBCs and similar types of bags used for the packing of goods. In New York Ruling N267169, dated August 25, 2015, CBP examined a woven sleeve composed of polypropylene strips. The sleeve is glued on each side and left open on each end. CBP determined its essential character was an unfinished FIBC bag and classified it under subheading 6305, HTSUS. In New York Ruling N257467, dated September 19, 2014, CBP ruled on an FIBC constructed from woven polypropylene strips. It contains a separate but sewn-in liner of plastic sheeting specifically made and shaped to fit inside. The fitted plastic liner would be considered a composite good for tariff purposes with the essential character imparted by the FIBC, wherein CBP noted GRI 3(b), HTSUS, and classified it under heading 6305, HTSUS. See also N255320, dated August 4, 2014 (woven polypropylene strips bag measuring 60” x 48” with an opening at one end for filling and the other end is folded over and sewn closed classified under 6305, HTSUS); N216187, dated May 25, 2012 (an FIBC composed of woven polypropylene strips with looped straps at each top corner weighing more than one kilogram classified under heading 6305, HTSUS); N199020, dated January 25, 2012 (laminated polypropylene woven sack with a hemmed bottom measuring 34.5” x 15” and printed with the company’s name and butterflies classified under heading 6305, HTSUS).
At the Headquarters level, there are several rulings on FIBCs and similar articles. In HQ 963508, dated December 21, 2000, this office considered an FIBC woven polypropylene bag that is circular in shape and used to transport sand, classifying it under heading 6305, HTSUS. In HQ 961938, dated June 11, 1999, we examined an FIBC woven from polypropylene fabric with a lining also used to transport sand, classifying it under heading 6305, HTSUS. In ruling HQ H238478, dated September 4, 2014, we applied the Carborundum factors to an Aqui–Pak which is made of absorbent nonwoven textile fabric which is then folded on itself and heat sealed, creating partitions between each pouch for the safe transport of laboratory specimen tubes. Finding that the Aqui-Pak is of the same class or kind as bags used for packing goods, CBP classified it under heading 6305, HTSUS.
Hence, there is no requirement that sacks or bags of heading 6305, HTSUS, must transport or store only commercial merchandise for sale. This proposition is not supported by the text of heading 6305, the EN thereto, or our rulings.
For all of the aforementioned reasons, we find that the instant reusable bags of woven polypropylene strips used for yard waste and recycling are of the same class or kind as bags used for packing goods. Therefore, the instant merchandise is classified under heading 6305, HTSUS. As heading 6307, HTSUS, only provides for “other” made up articles which are not classified elsewhere, the reusable bags of woven polypropylene strips used for yard waste and recycling are not classifiable under heading 6307, HTSUS. See also EN 63.07.
HOLDING:
By application of GRI 1, the reusable bags of woven polypropylene strips used for yard waste and recycling are classified under heading 6305, HTSUS. They are specifically classified under subheading 6305.32.0010, HTSUSA, which provides, in pertinent part, for “Sacks and bags, of a kind used for the packing of goods: Of man-made textile fibers: Flexible intermediate bulk containers, weighing more than one kg or more.” The duty rate is 8.5 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the U.S. International Trade Commission’s website at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 955639, dated April 5, 1994, is REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division