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HQ 086579


March 7, 1990

CLA-2 CO:R:C:G 086579 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 3923.21.0010

Mr. Jeffrey W. Holt
F.W. Myers & Co., Inc.
P.O. Box 610188
1918 Pine Grove Avenue
Port Huron, MI 48061

RE: Polyethylene bags

Dear Mr. Holt:

This is in response to your letter, dated December 7, 1989, on behalf of Dow Chemical Company, concerning the tariff classification of polyethylene food bags with minigrip closures, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). These articles will be imported from Canada. You did not submit any samples along with your request.

FACTS:

The sample merchandise is described as reclosable bags consisting of polyethylene, with integral extruded closures. The importer maintains that the bags are marketed through food distributors to grocery stores and supermarkets. The importer has also stated that the bags are primarily used by consumers to store food.

ISSUE:

What is the proper tariff classification of the reclosable polyethylene bags at issue under the HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 3923, HTSUSA, provides for, inter alia, articles for the conveyance or packing of goods, of plastics. The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. The Explanatory Note to this heading states that "all articles of plastics commonly used for the packing and conveyance of all kinds of products [are covered herein]."

Customs has previously decided in Headquarters Ruling Letter 084764, dated September 14, 1989, that Heading 3923, HTSUSA, is a use provision. Consequently, the heading under which the subject merchandise will be classified is controlled by the use in the United States at, or immediately prior to, the date of importation of goods of the class or kind to which the subject merchandise belongs. The controlling use of an article is its principal use which has been defined to mean that use which exceeds any other single use. Additional U.S. Rule of Interpretation 1(a), HTSUSA. Accordingly, if the subject merchandise is principally used for the packing or conveyance of goods, whether prior to or subsequent to the point of sale, then the articles are classifiable under Heading 3923, HTSUSA.

Reclosable plastic bags, such as the instant merchandise, may be used for a variety of purposes. However, we have determined that the sample plastic bags will be principally used by consumers to pack, store and convey food. Accordingly, it is Customs position that the reclosable plastic bags are most specifically described under Heading 3923, HTSUSA, which provides for articles of plastics commonly used for the packing or conveyance of goods. Thus, classification is proper by applying GRI 1.

HOLDING:

Based on the foregoing analysis, the sample merchandise is classifiable under subheading 3923.21.0010, HTSUSA, which provides for articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of polymers of ethylene. . . Reclosable, with integral extruded closure. Articles classifiable under this subheading are subject to a 2.4 percent ad valorem rate of duty under the United States-Canada Free Trade Agreement upon compliance with all applicable regulations. General Note 3(c)(vii), HTSUS.

Sincerely,

John Durant, Director

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