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HQ 961067




December 6, 1999

CLA2 RR:CR:TE 961067 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 3923.21.0080

Port Director
U.S. Customs Service
Miami Service Port
P.O. Box 52-3215
Miami, Florida 33152

RE: Application For Further Review of Protest No.5201-97-100260; Classification of Shopping Bags Composed of Plastic Sheeting; Not Designed For Prolonged Use.

Dear Sir:

This is in response to the request for further review of a protest timely filed by Hellmann Transport Services on behalf of Allders International, concerning the proper classification of various plastic bags which were imported from Hong Kong. The protest involves plastic bags which were classified when entered on October 2, 1996, as travel and sports bags in subheading 4202.92.4500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer has protested the classification and claims the proper classification of these garments is as articles for the conveyance or packing of goods under subheading 3923.21.0019, HTSUSA. We have considered the protest and our decision follows.

FACTS:

The invoice submitted with the protest describes the merchandise as polyethylene bags: duty free small bags (item 177757) with no gusset, composed of approximately .05 mm of transparent plastic; duty free medium bags (item 177771) composed of approximately .10 mm of transparent plastic; duty free large bags (item 177764) composed of approximately .10 mm of transparent plastic; duty paid medium bags (item 169356) composed of approximately .10 mm of blue plastic; magazine bag (item 136310) with no gusset, composed of approximately .05 mm of blue plastic; and a postcard bag (item 136303) with no gusset, composed of approximately .05 mm of blue plastic.

The sample provided by the importer is identified as style 169356. It is a polyethylene bag which measures approximately 15.5 inches by 20 inches, it has heat sealed seams, a cardboard stiffener on the bottom gusset and along the top sides of the bag, and two removable handles. It contains the logo “Allders” and the names of various cities throughout the world, on both the front and back of the bag.

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The protestant indicates only that the bags are plastic shopping bags which should have been entered under Heading 3923, HTSUS, which provides for articles for the conveyance or packing of goods, of plastics, and not classified in Heading 4202, HTSUS, which provides, inter alia, for attache cases, briefcases, and similar containers as entered.

ISSUE:
What is the proper tariff classification for the polyethylene bags?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

Heading 4202, HTSUSA, provides for:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

By its terms, Heading 4202, HTSUSA, encompasses shopping bags such as those under consideration.

However, Chapter 42, Note 2(A)(a), HTSUSA, states that Heading 4202 does not cover "(b)ags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923)." It specifies that these plastic shopping bags are to be classified under heading 3923, HTSUS. By implication, bags composed of plastic sheeting which are designed for prolonged use may be classified in Heading 4202. As the instant merchandise are bags composed of plastic sheeting, we must determine whether they have been "designed for prolonged use." The HTSUSA does not define this phrase. Therefore, we must turn to our administrative precedent for guidance.

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In Headquarters Ruling Letter (HRL) 953077, dated April 26, 1993, we excluded shopping bags composed of plastic sheeting from heading 4202, HTSUSA. Polyethylene plastic bags used at retail to pack groceries to transport purchases home have routinely been excluded from heading 4202, HTSUSA. See HRL 082831, dated February 26, 1990; HRL 082998, dated October 23, 1989; HRL 083069, dated August 14, 1989; HRL 081876, dated November 22, 1988. As these shopping bags were intended only to carry groceries home, they were not designed for prolonged use. Similarly, in HRL 082218 and HRL 082659, both dated February 27, 1990, we excluded from heading 4202 certain polyethylene plastic bags used by hospitals to store the personal belongings of patients. We concluded in those decisions that the bags "could not be reused."

In the foregoing decisions, bags of sheeting of plastics intended for a single use were excluded from heading 4202, HTSUSA, by virtue of Note 2(A), Chapter 42, HTSUSA. We must therefore consider whether the bags at issue here have been designed for repetitive use. We note that these bags are made of plastic material of a gauge sufficient to resist rips and tears. However, these bags are disposable shopping bags which are generally used at the point of sale and are provided by the store selling the product. They are typically designed to assist a retail customer take home items bought in stores. It is our view that although the bags are capable of reuse, and could, in fact, be reused "several" times, they are intended and designed for a single use. In HQ 081971, dated March 26, 1990, we ruled that polyethylene shopping bags, though prima facia classifiable in heading 4202, are precluded from classification therein by virtue of the legal note exclusion since “shopping bags manufactured of polyethylene plastic sheeting are not designed for prolonged use.” The submitted sample is precisely the type of shopping bag described in these exclusions. We note that the other bags imported are similar to the one for which a sample has been provided, except in size. Accordingly, the bags are precluded from classification in heading 4202, HTSUSA.

In considering the proper classification of the bags, we note that counsel has suggested that they are classifiable in heading 3923.

Subheading 3923.21, HTSUS, provides for articles for the conveyance or packing of goods, of plastics:...:Sacks and bags (including cones). Since plastic bags are specifically provided for in subheading 3923.21, HTSUS, this is the provision applicable to the merchandise at issue. Headquarters Ruling Letter (HRL) 081876, dated November 22, 1988, also dealt with polyethylene plastic shopping bags. This ruling held that the polyethylene bags were classifiable under subheading 3923.21.00, HTSUSA, as articles for the conveyance or packing of goods of polymer of ethylene.

HOLDING:

The subject merchandise is properly classifiable under subheading 3923.21.0090, 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

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of ethylene: Other: Other. The applicable general column one rate of duty is 3 percent ad valorem.

Therefore, based on the foregoing discussion, you are instructed to ALLOW the protest in full.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Wed at www.customs.ustreas.gov, by means of the Freedom of Information Act and other methods of public distribution.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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