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HQ 956186




September 29, 1994

CLA-2 CO:R:C:T 956186 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.2000

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

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

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