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HQ 082464


March 10, 1989

CLA-2 CO:R:C:G DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: HTSUS 389.62

Gail T. Cumins, Esq
Law Offices
Sharretts, Paley, Carter & Blauvelt, P.C.. Eighty Broad Street
New York, N.Y. 10004

RE: Request for reconsideration of New York Ruling Letter (NYRL) 824436 dated August 19, 1987, concerning the tariff classification of polyethylene bags produced in China.

Dear Mrs. Cumins:

In a letter dated September 21, 1987, you asked that this office review the result reached in NYRL 824436 dated August 19, 1987, concerning the dutiable status of certain polyethylene bags produced in China.

FACTS:

The sample bag submitted measures 17 inches by 16 inches by 7 inches. It has a flat bottom with two loop handles on either side, an unsecured opening, and is claimed to be ornamented by two, 3/4" strips of polyethylene, which form the handles of the bag and extend from the handles around the bag's bottom.

In NYRL 824436, dated August 19, 1987, Customs ruled that bags represented by the sample were classifiable under the provision for luggage, of other textile materials, other, of man- made fibers, other, in item 706.4135, Tariff Schedules of the United States Annotated (TSUSA), and dutiable at the rate of 20 percent ad valorem. The applicable textile category number was 670.

It is your view that this merchandise is properly classifiable under the provision for articles not specially provided for, of textile materials, ornamented, other, of man- made fibers in item 386.1443, TSUSA, and dutiable at the rate of 10 percent ad valorem.

ISSUE:

Whether the polyetheylene bags are within the purview of the term "luggage" for tariff purposes?

LAW AND ANALYSIS:

Schedule 7, Part 1, Subpart D, Headnote 2(a)(i), TSUSA, provides that:

2. "For the purposes of the tariff schedules-- (a) the term "luggage" covers --
(i) travel goods, such as trunks, hand trunks, lockers, valises, satchels, suitcases, wardrobe cases, overnight bags, pullman bags, gladstone bags, traveling bags, knapsacks, kit bags, haversacks, duffle bags, and like articles designed to contain clothing or other personal effects during travel."

The cases of Adolco Trading Co. v. United States, 71 Cust. Ct. 145, C.D. 4487 (1973); J.E. Mamiye & Sons, Inc. v. United States, 85 Cust. Ct. 92, C.D. 4878 (1980); aff'd, 69 C.C.P.A. 17 (1981), and Legal Determination 82-0122 dated October 4, 1982, are relevant to the issue involved here.

In Adolco, supra, the court held that certain inexpensive plastic shopping bags were classifiable as articles, not specially provided for in item 774.60, TSUS, rather than as luggage of other materials in item 706.60, TSUS. These shopping bags measure 9 inches by 9 inches by 4 inches to 13 inches by 14 inches by 4 inches or more or less, and had wide, unsecured openings, long handles attached by rivets and flat bottoms. They resembled paper shopping bags in size, shape and general characteristics and were used to carry purchases home from the store and also for convenience in carrying other than purchased articles.

The instant bags resemble those ruled upon in Adolco to the extent that they resemble paper shopping bags in size, shape, and general characteristics. Further, they are bought and marketed as shopping bags.

The appellate court in Mamiye, supra, construed "the term 'shopping bag' to mean a bag primarily used for shopping, that is, for carrying purchased articles from the place of purchase to the place of use. The court below found that [5] tote bags of the types here in issue, while useful for shopping are primarily used as a second handbag for the convenience of carrying additional personal articles that would not fit in one handbag. The record amply supports the conclusion that the chief use is to carry articles already in ones possession, such as books, packed lunches, umbrellas or extra shoes."

In Legal Determination 82-0122, dated October 4, 1982, it was stated that "tote bags will be regarded as more than shopping bags if they have one or more features in addition to being made of textile materials such as, but not limited to, inside or outside flaps, linings, compartments, any type of closure, or ornamentation or some other feature imparting a degree or quality to the article making it suitable for more than the transport of purchases once or only a few times. For example, a textile bag with no such features, and which is of such insubstantial quality that its life is clearly temporary, or it cannnot be used without lining it with the bags merchandise is otherwise packaged in would not be regarded as of the same class of merchandise the Mamiye court was concerned with.

We have concluded that the limitation imposed by Legal Determination 82-0122 that for a bag to qualify as a shopping bag it must be suitable for the transport of purchases once or only for a few times and be of insubstantial quality is a too rigid interpretation of Mamiye. It is our observation that the decision in Mamiye rested on the failure of the government to show that the bags were primarily or chiefly used for shopping rather than on the physical characteristics of the bags.

HOLDING:

It is our position that the instant polyethylene bags are not luggage for tariff purposes because they are bought and marketed as shopping bags.

We do not agree with your claim that the sample bag is ornamented. It is our observation that the loop handles which extend completely around the bag's bottom are primarily functional which would preclude their being considered ornamented for tariff purposes. The United States v. Endicott Johnson Corporation, 67 CCPA 47, C.A.D. 1242 (1980).

Polyethylene bags represented by the sample are classifiable under the provision for articles not specially provided for, of textile materials, not ornamented, of man-made fibers, other, other, in item 389.6270, TSUSA, and dutiable at the rate of 9 percent ad valorem.

Sincerely,

John Durant, Director

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