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NY C80447




October 17, 1997

CLA-2-48:RR:NC:2:234 C80447

CATEGORY: CLASSIFICATION

TARIFF NO.: 4819.30.0040; 4819.40.0040

Mr. Arthur K. Purcell
Neville, Peterson & Williams
80 Broad Street (34th Floor)
New York, N.Y. 10004

RE: The tariff classification of "festive gift bags" of paper, from China.

Dear Mr. Purcell:

In your letter dated October 2, 1997, your file number 2022-01, on behalf of your client, Target Stores, you requested a tariff classification ruling for ten varieties of festive gift bags designed for use during the Christmas season. Samples were submitted, which will be returned to you, as requested.

The samples have the following common characteristics and features: 1/ They are constructed of strong paper which is coated or covered with a plastic laminate or overlay; 2/ each bag has a flat bottom, and contains a paperboard rectangle at the inside bottom of the bag, to serve as reinforcement against the weight of the articles they are intended to hold; 3/ each bag has a braided textile cord handle attached to the upper portion of the bag. The braided handles (with the exception of two bag varieties) have traditional Christmas colors, green or red.

4/ Each bag (with the exception of three "foil" solid colored bags and one "heart" motif bag) has a printed design with a traditional Christmas holiday theme; 5/ each bag is intended to contain and/or transport Christmas gifts and may be used as an alternative to wrapping paper; 6/ the bags will be sold by Target Stores exclusively during the Christmas holiday season.

The samples bear the following Model numbers: 4997195; 051/00/0166; 051/00/153; 051/00/10156; 051//000/0155; 051/00/0144; 051/00/0152; 051/00/0160; 49933395; and 4123495.

In your letter you cite Harmonized Tariff Schedule (HTS) headings 9505, 4819, and 4823; note 1(p), chapter 48, HTS; several court decisions, most notably Midwest of Cannon Falls, Inc. v. United States, CAFC Slip Op. 96-1271 (August 14, 1997); and an Explanatory Note to HTS heading 9505.

You propose classification of the subject bags in subheading 9505.90.60, HTS, as "other festive articles". If we are not in agreement, you request an opportunity to meet with the responsible Customs officials before a final decision is rendered.

We do not agree, and have met with you, and with Mr. John M. Peterson of your office, to discuss the issues.

Paper gift bags, similarly constructed, belong to a class or kind of article which has been uniformly classified in subheadings 4819.30.0040 or 4819.40.0040, depending on the width of the base of the bag being classified.

However, note 1 (p), chapter 48, excludes from the chapter "Articles of chapter 95". If the bags of your request are "festive articles" of 9505.90.60, as you propose, they are excluded from classification in 4819.30.0040 or 4819.40.0040 by note 1 (p).

Explanatory Note (B)(c) to heading 95.05, reads: This heading also excludes: Packagings of plastics or of paper, used during festivals (classified according to constituent material, for example, Chapter 39 or 48).

We are instructed by this Explanatory Note that the bags of your request, being packagings of paper, are not articles of heading 9505, and, therefore, are not articles of chapter 95, within the scope of note 1 (p), chapter 48, and thus not excluded from the chapter.

You note this language, at page 10 of your letter, but contend that, a) the bags are not "packagings", and, b) if they are "packagings", the court, in Midwest, Slip Op. 96-1271,-1279, supra, has ruled that "...the Explanatory Notes may not be used to limit the language of a tariff heading."

Your argument, that the bags in question are not "packagings" within the intendment of the exclusionary explanatory note, is not persuasive. These articles, when classified in chapter 48, are classified as "bags and other packing containers". A bag, therefore, may be a "packing container". To hold that a "packing container" is not "packaging", is in our opinion not sustainable.

Your alternative argument, that the court ruled in Midwest that "...the Explanatory Notes may not be used to limit the language of a tariff heading." is not consonant with our reading of the decision.

What the court said was "...we refuse to import incidental characteristics of the examples in the Explanatory Notes into the headings of the HTSUS." (Emphasis supplied). The Government had relied on certain examples in the Explanatory Notes, "most of which hang from a tree or elsewhere", to derive a rule that Christmas ornaments must be meant to be hung.

Similarly, because the examples of Christmas ornaments in the Explanatory Notes are "inexpensive and traditionally associated with Christmas", the Government had derived a rule that the language of the headings referred only to such articles as were "inexpensive, etc.".

The court voided both rules, as based on inferences from the perceived nature of "examples", which rules "are extraneous limitations that are not based on the actual language of the headings."

The court did not hold that any article named in the Explanatory Note as being within the scope of the heading, is not described by the heading; nor did it hold that any article or class of article named in the Explanatory Note as being excluded from the heading, was nevertheless classified in the heading.

We will not extrapolate the court's limited holding as to "incidental characteristics of examples" in the Explanatory Notes, to encompass a broad striking down of specific instructive language of the Notes, where there is not, as in this instance there is not, necessary and unambiguous conflict with the statutory language of the headings.

One of the bags of your request, Model 051/00/0155, depicting Santa Claus entering a chimney while carrying a bag of Christmas gifts, has a base of a width of 40 cm or more. Accordingly, the applicable subheading for this product will be 4819.30.0040, Harmonized Tariff Schedule of the United States (HTS), which provides for: Cartons, boxes, cases, bags and other packing containers, of paper, paperboard...: Sacks and bags, having a base of a width of 40 cm or more: Other (than shipping sacks and multiwall bags, other than grocers' bags). The rate of duty is 3.7 percent ad valorem.

The remaining bags of your request do not have bases of a width of 40 cm or more. Accordingly, the applicable subheading for these products will be 4819.40.0040, HTS, which provides for: Cartons, boxes, cases, bags and other packing containers, of paper, paperboard...:Other sacks and bags, including cones: Other (than Shipping sacks and multiwall bags, other than grocers' bags). The rate of duty is 3.7 percent ad valorem.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding this ruling, contact National Import Specialist Carl Abramowitz, at (212) 466-5733. Sincerely,

Robert B. Swierupski

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