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HQ 963508




December 21, 2000

CLA-2 RR:CR:TE 963508 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6305.32.0010

Mr. Richard H. Abbey
Ablondi, Foster, Sobin & Davidow, P.C.
1150 Eighteenth Street, N.W.
Ninth Floor
Washington, D.C. 20036-4129

RE: Request for Reconsideration of HQ 961938; Flexible Intermediate Bulk Container; Polypropylene woven bag; Subheading 6305.32.0010; General Rule of Interpretation 5 (b).

Dear Mr. Abbey:

The purpose of this correspondence is to respond to your request of July 20, 1999. The correspondence in issue requested, on the behalf of your client Toyota Tsusho America, Inc. (Toyota), reconsideration of Headquarters Ruling Letter 961938.

This reconsideration is being issued subsequent to the following: (1) A review of your submissions dated July 20, 1999, and August 31, 2000; (2) A review of TEN-E Packing Services, Inc., Test Report No.: 00-4032; and (3) A conference conducted at the Customs Service Headquarters on November 9, 2000, at which you, Ms. Sarah Nappi of your office and Mr. George Pierce, General Counsel of Toyota, were present.

The Customs Service afforded Toyota thirty days from the date of the November 9, 2000, conference to provide an additional submission. No submission was received as of the date of this decision.

This reconsideration is also being issued subsequent to a review of the entire HQ 961938 file. This file includes, among other documents, two submissions filed on the behalf of Toyota and the initial request for Internal Advice. It is additionally noted that a conference was conducted at the Customs Service Headquarters on January 25, 1999, at which time Toyota, represented by you and Mr. Pierce, was afforded the opportunity to address the issues raised in the request for Internal Advice prior to the issuance of HQ 961938.

FACTS

The article in issue, known as a “Flexible Intermediate Bulk Container”

See generally The Wiley Encyclopedia of Packaging Technology 448-49 (Aaron L. Brody & Kenneth S. Marsh eds., 2nd ed. 1997) (discussing flexible intermediate bulk containers). or FIBC, is a polypropylene woven bag or container. The container, in general terms, is circular, composed of a woven polypropylene fabric .4 mm thick with sewn side seams. It has an interior lining that is made of polypropylene sheeting .4mm thick, a top fill spout, a bottom discharge spout, two (2) perpendicular lifting straps, four (4) side reinforcements and a document pouch.

The Test Report of TEN-E Packing Services offers a more complete description of the container. The container according to the TEN-E report is composed entirely of woven polypropylene. It has a height of twenty-four and one-half (24 ½) inches and a diameter of thirty-two and one-half (32 ½) inches. The tare weight is 1393 grams.

The container has two lifting straps composed of polypropylene webbing. The lifting straps are three (3) inches wide and have a loop length of 101 ½ inches. Four (4) inch aspects of a five and three-fourth (5 ¾) inch overlap of the loops are sewn to the bottom of the container. The lifting straps run up the sides, cross the top and then run down the opposite side. The straps cross over the top of the container at ninety-degree angles to one another. The straps are sewn to the side edges of the container near the top with the stitching attaching eight (8) inches of the strap to the container. The stitching method is zigzag.

The bottom of the lifting straps are sewn over to form loops. A five-sixteenth (5/16) of an inch thick polyvinyl chloride rope is threaded through the loops and tied.

The straps are reinforced to the sides of the container at four locations along the top edge. The reinforcements are four pieces of woven polypropylene material, the same as that of which the container is composed. These reinforcements measure nine and five-eighths (9 5/8) inches in height and six (6) inches in width. The reinforcements are sewn on to the container with the lifting straps crossing on top. The reinforcing material is then located between the strap and the container. Four six (6) inch by three (3) inch pieces of polypropylene webbing, the same material as that of which the straps are composed, are sewn across the top of the lifting straps at the top of each of the woven polypropylene reinforcements. The stitching used to attach the reinforcements is a zigzag stitch.

The containers in issue are used to transport sand. They are designed to contain 500kgs or 1102.3 pounds. The manufacture is Shibata Industrial Co., LTD. of Japan.

ISSUE

Is the flexible intermediate bulk container in issue a “[s]ack or bag, of a kind used for the packing of goods” that is “clearly suitable for repetitive use” pursuant to General Rule of Interpretation 5 (b) ?

LAW AND ANALYSIS

Toyota Tsusho America, Inc. made a request for Internal Advice on April 24, 1998. The decision of the Customs Service on that request is set forth in HQ 961938, dated June 11, 1999. The legal analysis and conclusions announced in HQ 961938 are correct.

The Customs Service, in an effort to fulfill its mission to all importers, will not reiterate the facts, analysis or conclusions of HQ 961938 Headquarters Ruling Letter 961938 is available on the Customs Service Infobase, www.customs.gov, search “Importing & Exporting” then “Rulings and Regulations.”. HQ 961938 is incorporated into this ruling by reference.

This reconsideration will, therefore, only address those issues raised by Toyota in its appeal. The primary issue is whether the flexible intermediate bulk container in issue is a “[s]ack or bag, of a kind used for the packing of goods” that is “clearly suitable for repetitive use” pursuant to General Rule of Interpretation 5 (b). Subheading 6305.32.0010, Harmonized Tariff Schedule of the United States; General Rule of Interpretation 5 (b). Subsidiary issues raised by Toyota include the accuracy of cost comparison figures stated by the Customs Service in HQ 961938 and the party responsible for the decision to have the FIBC tested for durability.

The Customs Service, in advance of addressing the issues raised in this appeal, believes that it is essential to understand the classification of the merchandise and the General Rule of Interpretation that is the subject of application. Headquarters Ruling Letter 961938 classified the polypropylene woven bag in subheading 6305.32.0010, Harmonized Tariff Schedule of the United States (HTSUS). Subheading 6305.32.0010 provides:

Sacks and bags, of a kind used for the packing of goods:

Of man-made textile materials:
Flexible intermediate bulk containers

6305.32.0010 Weighting one kg or more.
(Emphasis added).

It is the conclusions of the Customs Service that the polypropylene woven bag imported by Toyota is correctly classified in subheading 6305.32.0010, HTSUS.

It is specifically noted, for reasons that will be discussed in greater detail in a subsequent aspect of this ruling letter, that heading 6305 addresses not merely sacks and bags used for the packing of goods, but rather, sacks and bags “of a kind” used for the packing of goods. Heading 6305, HTSUS. The inclusion by Congress of the phrase “of a kind” in heading 6305 focuses the attention of the Customs Service, not simply on the particular sack or bag of importance to Toyota, but rather on all sacks and bags which are of the kind used for the packing of goods.

The Customs Service classification mandate from Congress is to classify sacks or bags used for packing by specific importers by referencing all sacks and bags that are of the kind of sacks and bags used by all importers. It is not the particular sack or bag utilized by an individual importer that is relevant but, rather, the universe of all sacks or bags that are of the kind utilized by the importing community for the packing of goods.

The classification of imported merchandise pursuant to the Harmonized Tariff Schedule of the United States is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1, HTSUS. GRI 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation in their sequential order. See General Rule of Interpretation 1, HTSUS.

General Rules of Interpretation 1 through 4 do not address the issue raised in this appeal. The Customs Service must, therefore, examine General Rule of Interpretation 5. General Rule of Interpretation 5 provides that “[i]n addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein.” General Rule of Interpretation 5, HTSUS. General Rule of Interpretation 5 (b), of particular importance to the resolution of this classification matter, provides in pertinent part:

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).

The essence of GRI 5 (b) is that packing materials and packing containers are to be classified with the goods they transport, except when the materials or containers are clearly suitable for repetitive use. Packing materials and containers that are clearly suitable of repetitive use are classified separately from the goods they transport.

Toyota Tsusho America suggests that the FIBC it uses to import resin coated sand is not clearly suitable for repetitive use pursuant to GRI 5 (b). Toyota initially maintained that the FIBC was not physically suitable for repetitive use and subsequently suggested that the container is not suitable for repetitive use in a commercial sense. Toyota references the Customs Service to the Court of Appeals for the Federal Circuit decision in Holly Stores, Inc. v. United States, 697 F. 2d 1387 (Fed. Cir. 1982) as authority for its positions.

The Court of Appeals in Holly Stores interpreted General Headnote 6 (b) (ii) of the Tariff Schedule of the United States (TSUS), the predecessor of the HTSUS. General Headnote 6 (b) (ii) of the TSUS provided, in part, that “shipping or transportation containers, if designed for, or capable of, reuse, are subject to treatment as imported articles separate and distinct from their contents.” (Emphasis added) General Headnote 6(b)(ii), Tariff Schedule of the United States. The Court in Holly Stores held that “reuse”as used in General Headnote 6 (b) (ii) should be interpreted to mean “practical, commercial reuse, not incidental reuse.” Holly Stores supra, at 1388.

The Customs Service in the instant appeal has been called on to apply GRI 5 (b) to the FIBC used to import resin coated sand by Toyota. Although the language employed in General Headnote 6 (b) (ii), TSUS, is not identical to the language of GRI 5 (b), HTSUS, the Customs Service has previously concluded that “reuse” as used in General Headnote 6 (b) (ii) and “repetitive use” as used in GRI 5 (b) both mean, as announced in Holly Stores, practical, commercial reuse and not incidental reuse. See HQ 084068, HQ 961973, HQ 962709.

It is initially noted that the polypropylene woven bags imported by Toyota are of substantial construction. The containers, according to TEN-E Packing Services, the testing laboratory selected by Toyota, meet the British Standards Institution 6382 Performance Certification for multi-trip flexible intermediate bulk containers with multi-lift capabilities. No domestic performance standards currently exist for flexible intermediate bulk containers. Although the FIBC in issue meets the British multi-trip certification standard, it is not the conclusion reached by the testing service that is most significant to the Customs Service, but rather the test results themselves.

The Customs Service, when necessity dictates, utilizes the services of its laboratory, as well as, the services of outside, independent laboratories for the testing of merchandise submitted for classification. See generally 19 C.F.R. 151 et seq. Laboratory test results provide the Customs Service with facts on which reasoned, considered binding rulings may rest. Referencing Customs Service laboratory test results or the test results of an outside, independent laboratory as support for a classification decision should not be construed as abdicating the responsibility of the Office of Regulations and Rulings to classify merchandise. Binding classification decisions involve the inter-relationship of law and facts. Test results alone, whether the product of a Customs Service laboratory or of an outside laboratory, do not dictate the classification of merchandise.

TEN-E Packing performed four tests on the flexible intermediate bulk container in issue. The tests included: (1) The Top Lift Test; (2) The Cycle Top Lift Test; (3) The Stack Test; and (4) The Drop Test. The polypropylene woven bag tested suffered no leakage of contents nor did any of the lifting straps sustain damage that disabled the container from supporting its load.

The Top Lift Test was designed to determine whether the container could lift a specific weight of material without failing. The FIBC tested was filled with material weighting 3000 Kg or 6,613.8 pounds. It is noted that the weight of material was deemed to be six times the safe working load of the bag. The safe working load of the bag being 500 Kg or 1102.3 pounds. The container, once evenly filled, was lifted. The FIBC sustained no deformation nor did it lose any content.

The Cycle Top Lift Test was designed to address the capability of the container to be filled and repeatedly lifted. The bag was initially filled with material weighting 2000 Kg or 4,409.2 pounds and then lifted seventy times at a rate of not more than thirty seconds per cycle. The container, on the seventy first cycle was filled with material weighting a total of 3000 Kg and lifted one additional time. The container maintained its integrity, losing no content. The lifting straps remained in good working order.

The Stack Test was designed to assess the ability of the container to be loaded one on top of another. The FIBC tested was filled with 2000 Kg or 4,409.2 pounds of material. Pressure was exerted on the top of the container designed to simulate stacking. The test lasted five minutes. A maximum deflection of .18 inches was recorded. The container sustained no loss of content.

The final test addressed in the TEN-E Packing report was the Drop Test. The test container was filled with material, but the report does not disclose the weight of the material. Subsequent to being filled, the bag was lifted approximately 500 mm or 19.7 inches. The container, through the use of a quick release mechanism, was then dropped. The container suffered no deformation and there was no leakage of content.

It is the conclusion of the Customs Service, subsequent to a visual examination of a sample polypropylene woven bag and a review of the TEN-E Packing test report that the FIBC in issue is physically suitable for repetitive use. The container is composed of durable material and is manufactured in a fashion that complements the strength of the material.

Having concluded that the polypropylene woven bag imported by Toyota is physically capable of repetitive use, the issue which remains to be addressed is Toyota’s second suggestion that the container is not suitable for “practical, commercial reuse.” Importer’s Submission, Aug. 13, 2000, at 2. The Customs Service, subsequent to an exhaustive review of the law, concludes that the container imported by Toyota is of a kind that is “clearly suitable for repetitive use” not only in a physical sense, but also in practical, commercial terms.

The General Counsel of Toyota stated during the conference conducted at the Customs Service Headquarters on November 9, 2000, that Toyota imports approximately eighty to one hundred of the polypropylene woven containers annually. He further indicated that Toyota was previously using a more durable rubberized bag prior to using the polypropylene woven bag. Mr. Pierce stated that his company changed to the polypropylene container because a cost analysis study conducted by Toyota indicated that it was more cost effective for Toyota to dispose of the polypropylene bags than to reuse the rubberized bags. Customs was additionally advised that Toyota’s customer discards the bags subsequent to emptying the contents.

If the issue in this appeal was whether it is practically, commercially reasonable for Toyota to reuse the polypropylene woven bags in its business operations, the Customs Service, based on Toyota’s statements might agree with the importer. The issue is not, however, whether it is cost effective for Toyota to reuse the containers. The issue is whether the polypropylene woven bags are “of a kind” of sacks or bags that are clearly suitable for repetitive use. The issue phrased in a fashion that relates directly to Toyota is whether the polypropylene woven bag used by Toyota is of a kind of sack or bag that is practically, commercially reusable by importers that utilize a packing sack or bag that is of the kind used by Toyota. It is the conclusion of the Customs Service that the polypropylene woven bag imported by Toyota is a sack or bag used for packing goods, the kind of which possesses appreciable commercial value subsequent to its initial use.

Heading 6305 addresses the classification of sacks and bags “of a kind” used for the packing of goods. Heading 6305, HTSUS. Classifying the container in issue solely with reference to the circumstances of Toyota would fail to properly interpret the tariff schedule as intended by Congress when the Harmonized Tariff Schedule of the United States was enacted into law.

The position advocated by Toyota is one which requests that the Customs Service only examine its unique circumstances. It is the understanding of the Customs Service, subsequent to studying Toyota’s multiple submissions and having extended the opportunity to meet with representatives of and counsel for Toyota on two occasions, that it is not cost effective for Toyota to reuse the containers. Toyota Tsusho America’s position fails, however, to properly interpret the tariff schedule, particularly heading 6305. The position suggested by Toyota does not take into consideration the circumstances of other importers that use polypropylene woven bags that are of the kind used by Toyota.

A determination of whether the polypropylene woven bag in issue is “suitable for repetitive use” requires an examination of polypropylene woven bags that are of a kind utilized by the importing community. Heading 6305 does not simply classify sacks and bags used for the packing of goods, rather, it classifies sacks and bags that are “of a kind” used for the packing of goods. The phrase “of a kind” appears in 176 places throughout the legal notes, headings and subheading of the tariff schedule. Proper interpretation of heading 6305, particularly as it relates to the practical, commercial suitability for repetitive use of the container in issue requires an examination of whether the container is of a kind of containers that generally possess appreciable commercial value subsequent to their initial use.

A review of HQ 961938 that is under reconsideration in this ruling letter reveals an extensive discussion of the numerous rulings addressing polypropylene woven bags that are of the kind used by Toyota. The conclusion reached in HQ 961938 and in this reconsideration is that the polypropylene woven bag in issue is of a kind of containers that are “clearly suitable for repetitive use.” The container is of a kind that is practically, commercially suitable for repetitive use. The polypropylene woven bag imported by Toyota is of a kind that importers, which use the bag, find to be commercially feasible to reuse.

The Customs Service acknowledges that the manufacturer of the polypropylene bag only guarantees it for a single use and that Toyota produced evidence that an importation of sand in July of 1999, arrived with two FIBC’s having sustained punctures during transit. This information, while warranting consideration, is not deemed by Customs to be determinative of the container’s suitability for repetitive use.

The decision of the manufacturer to extend a warranty and the nature of that warranty are factors weighed by Customs. Suitability for repetitive use, as interpreted in accordance with GRI 5 (b) is, however, a matter for the Customs Service to determine. The factors that resulted in the manufacturer’s warranty decision may or may not be those that Customs concludes determinative of suitability for repetitive use. It is the decision of the Customs Service, based on the test results and the discussion of prior rulings in HQ 961938 that addressed polypropylene bags of the kind under consideration in this reconsideration, that the manufacturer’s warranty does not offer a sufficient basis for concluding that the container in issue is not clearly suitable for repetitive use.

Evidence of damage sustained by polypropylene bags during transit is also relevant to the ultimate decision in this matter. The evidence in this instance, however, is not persuasive. The facts presented by Toyota indicate that two polypropylene woven bags suffered punctures during shipping. It is specifically noted that Toyota’s submission of August 31, 2000, states that “several” FIBC’s arrived in damaged condition. The submission of July 20, 1999, stated a precise number. The July 20, 1999, correspondence indicated that only two containers sustained punctures. The submissions of Toyota and the accompanying photographs also indicate that the punctures were the result of exposure to bolts or other sharp edges in the door of an ocean container. It is the conclusion of Customs that the damage sustained by the bags could have been avoided if the bags had not been loaded close to the ocean container door. The damage was not the result of weaknesses in the polypropylene woven bags that would cause the Customs Service to conclude that they are of a kind that is not suitable for repetitive use.

A review of the photographs exhibiting the punctured bags and the statements indicating how the bags were damaged not only fails to convince Customs that the polypropylene woven bags are not suitable for repetitive use, but serves to confirm that the containers are clearly suitable for repetitive use. The damage alleged by the importer as the basis for questioning the suitability for repetitive use appears to be damage sustained as the result of the failure to use reasonable care during loading. The fact that Toyota could only bring forth information indicating that two containers of the numerous it uses to import sand arrived with punctures and offered no statement nor documentation establishing a failure rate of polypropylene bags that are reused, supports the decision of the Customs Service.

The photographs additionally show other polypropylene bags in the container that appear to have satisfactorily endured the rigors of ocean transit. The condition of the undamaged bags in the photographs substantiating the test results obtained by TEN-E Packing.

Counsel representing Toyota directed the attention of Customs to HQ 961973, suggesting that the referenced ruling supported the position of the importer. The Customs Service reviewed HQ 961973 and concludes that it is distinguishable from the instant reconsideration.

Headquarters Ruling Letter 961973 responded to the ruling request of an importer of plastic garment hangers. See HQ 961973. The conclusion of the Customs Service in HQ 961973 was that the particular hangers in issue, which were part of a hanger recovery or recycling program and had an estimated useful life of four to six cycles, were “clearly suitable for repetitive use” pursuant to GRI 5(b). The ruling emphasized the fact that the Court in Holly Stores viewed the articles under consideration from the perspective of whether the particular importer’s reuse of the hangers was sufficient to warrant the hangers being deemed separate and distinct articles of commerce.

The distinction of significance between the instant reconsideration and HQ 961973 is the specific tariff schedule descriptions of the merchandise. The hangers classified in HQ 961973 were merchandise classified in heading 3926. Heading 3926 provides for “[o]ther articles of plastic and articles of other materials of heading 3901 to 3914.” Heading 3926, HTSUS. The polypropylene woven bags of the instant reconsideration are classified in heading 6305. Heading 6305 provides for the classification of “[s]acks and bags of a kind used for the packing of goods.” (Emphasis added) Heading 6305, HTSUS supra.

It was appropriate for Customs in HQ 961973 to examine the suitability for repetitive use of the specific merchandise in issue with reference to the specific importer. Heading 3926 classifies the merchandise described without reference to other merchandise of the same kind. Heading 6305, on the other hand, requires that Customs take into consideration all sacks and bags that are “of the kind” used for the packing of goods. Since heading 6305 is a heading that classifies merchandise that is of the same class or kind, it is not the unique situation of a particular importer that receives the attention of Customs, but rather, it is all of the merchandise of the same kind that Customs must review prior to issuing a ruling.

Even though the specific polypropylene bags used by Toyota, like the hangers in Holly Stores, may never enter the stream of commerce, the majority of the polypropylene woven bags that are of the kind imported by Toyota are separate and distinct articles of commerce. A distinction between purely internal use and commercial use is relevant when the issue only involves an examination of specific merchandise imported by a specific importer. When the question presented involves the suitability for repetitive use of merchandise that is of a kind, the resolution of that matter involves an examination of all of the merchandise of that kind.

The subsidiary issues raised by Toyota in this reconsideration include the accuracy of cost comparison figures referenced by the Customs Service in HQ 961938 and the party responsible for the decision to have the container’s physical properties tested. Although the resolution of these issues does not have direct bearing on whether the container used by Toyota is clearly suitable for repetitive use, the Customs Service concluded that it should address Toyota’s contentions.

The Customs Service in HQ 961938 stated that the rubber bags previously used by Toyota cost $153.33 and that the polypropylene bags cost $20.83. Counsel representing Toyota, in correspondence dated July 20, 1999, suggested that there were “minor inaccuracies” in the figures referenced by Customs. Correspondence of Counsel, July 20, 1999, at 2. Counsel further stated that the correct figures were $250.00 for the rubber bag and $16.67 for the polypropylene bag. Correspondence of Counsel, July 20, 1999, at 2.

The Customs Service, vigilant of accuracy in the ruling letters issued by this Office, reviewed the Internal Advice file material, as well as the file material accumulated in the preparation of this reconsideration. The cost comparison figures referenced in HQ 961938 were obtained directly from a submission of counsel representing Toyota. See Correspondence of Counsel, Apr. 28, 1999, at 1.

Customs effort to ensure accuracy also revealed an unexplained inconsistency in the cost comparison figures quoted to the Customs Service. Correspondence from counsel representing Toyota advised Customs of the one set of cost figures in correspondence dated April 28, 1999, another set of figures in the July 20, 1999, correspondence and a third set of figures in correspondence dated August 31, 2000. The figures quoted in the August 31, 2000, correspondence were $300 for the rubber bag and $18.00 for the polypropylene woven bag. Toyota produced an initial set of cost comparison figures in Japanese yen in correspondence from counsel dated May 7, 1998. See Correspondence of Counsel, Aug. 31, 2000, at 2. No documentation supporting these figures was produced.

Toyota’s submission of August 31, 2000, additionally stated the testing undertaken by Toyota was conducted at “Customs’ direction” and that the Customs Service “indicated that the bags should be tested against British Standard # 6382 for multiple-use flexible intermediate bulk containers.” Correspondence of Counsel, Aug. 31, 2000, at 2. The Customs Service did not direct Toyota to have the container tested. Customs, in correspondence from the Director of the Commercial Rulings Division dated February 25, 2000, advised Toyota that “absent new information pertaining to the performance standards of these bags, we are not in a position to change our determination in HQ 961938.” Correspondence of Customs, Feb. 25, 2000, at 1. Customs further advised Toyota that “we cannot recommend any specific laboratories” and suggested that a representative of the Flexible Intermediate Bulk Container Association be contacted regarding information on the appropriate testing methods. Correspondence of Customs, Feb. 25, 2000, at 1.

The Customs Service utilized all available resources to assess whether the polypropylene woven bag in issue is of a kind that is practically, commercially reusable. If information exists which is suggestive of a contrary conclusion that information was not brought to the attention of the Customs Service. The burden is on the party requesting a ruling to provide the Customs Service with all relevant facts in sufficient detail to enable this Office to properly apply the law. See 19 C.F.R. 177.2 (b) (1) and (b) (2). If facts exist which support the contention of Toyota, those facts were not submitted in writing or in either of the conferences.

The Customs Service notes that Counsel’s correspondence of August 31, 2000, states that Toyota “would not object” if Customs chose to conclude that the polypropylene woven bag was an instrument of international traffic. Correspondence of Counsel, Aug. 31, 2000, at 3. Customs, subsequent to a review of Chapter 19, Part 177 of the Code of Federal Regulations, Administrative Rulings, concludes that the referenced statement does not constitute a request to have the polypropylene bag declared an instrument of international traffic. The Customs Service will not of its own volition make a declaration of this nature.

HOLDING

Headquarters Ruling Letter 961938 has been reconsidered and it is the conclusion of the Customs Service that it should be AFFIRMED.

The polypropylene woven bag in issue is “of a kind” of “sacks and bags used for the packing of goods” that is “clearly suitable for repetitive use” pursuant to General Rule of Interpretation 5 (b). The container should be classified separately from any merchandise it is used to transport.

The polypropylene woven bag is classified in subheading 6305.32.0010, HTSUS.

The general column one rate of duty for merchandise entered in the following years is as follows: 1997 - nine and two-tenth (9.2) percent, ad valorem; 1998 - nine and one-tenth (9.1) percent, ad valorem; 1999 - nine (9) percent, ad valorem; and 2000 - eight and eight-tenths (8.8) percent, ad valorem.

The textile category is 669.

It is recommended that Toyota contact its local Customs Service office prior to the importation of this merchandise to determine the current status of any restraints or requirements due to the changeable nature of the statistical annotation, the ninth and tenth digits of the HTSUS, and the restraint (quota/visa) categories applicable to textile merchandise.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the merchandise may be affected. It is recommended that Toyota review, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), since part categories are the result of international bilateral agreements and subject to frequent change. The Status Report is an internal issuance of the U.S. Customs Service and is available for inspection at local Customs Service offices.

Sincerely,

John Durant, Director
Commercial Rulings Division

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