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HQ 959679

May 8, 1997

CLA-2 RR:TC:FC 959679 ALS


TARIFF NO.: 4202.92.4500

Port Director of Customs
U.S. Customs Service
423 Canal Street, Room 200
Protest Unit
New Orleans, LA 70130

RE: Application for Further Review of Protest 2002-96-100009, dated December 29, 1995, Concerning A Plastic Drawstring Bag

Dear Port Director:

This ruling is in reference to the protest that was filed against your decision of October 13, 1995, regarding an entry for a plastic drawstring bag.


The article under consideration is a drawstring tote bag, item 1541. It is wholly manufactured of a clear polyvinyl chloride (PVC) plastic sheeting material and has a braided cord drawstring closure at the top. The drawstring is passed through metal or plastic grommets. The bag measures 15 inches high with a 7.5 inch diameter base and is decorated with items one might expect to find on any article directed at toddlers, e.g., animal caricatures, balloons, balls. The base is composed of plastic covered paperboard and all edges and seams are heat sealed. The bag is a product of China and is imported empty. Subsequent to importation the bag is filled with a 27 piece toddler feeding set consisting of learning to drink cups, food storage and feeding containers, a plastic fork, a plastic spoon, etc., and then sold at retail as a unit.


Is the subject plastic drawstring bag of a type similar to that used for packaging or to that used for travel, sport, etc.?


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.

The importer has suggested that the drawstring bag should be classified in subheading 3923.29.0000, HTSUSA, which provides for "Articles for the conveyance or packing of goods, of plastics;...of plastics: Sacks and bags, of other plastics." The entry covering the subject bag was liquidated under subheading 4202.92.4500, HTSUSA, the provision for travel, sport and similar bags, with outer surface of plastic sheeting. We note that the heading 3923 covers articles which are not designed for prolonged use. In this regard, it is noted that Note 2(A)(a) to Chapter 42, HTSUSA, specifies that: "Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923)." By implication, bags composed of plastic sheeting which are designed for prolonged use are classifiable in Heading 4202. Also, note 2(ij) to Chapter 39, HTSUSA, specifies that more substantial items are classifiable in Chapter 42, HTSUSA, and not Chapter 39. It provides exemplars of the such articles.

In this regard, we note, for example, Headquarters Ruling Letter (HRL) 953077, dated April 26, 1993, in which we excluded bags composed of plastic sheeting from heading 4202, HTSUSA, despite the fact they could be re-used "several" times. We reasoned that the bags were similar to plastic or paper shopping bags which were capable of re-use, but intended for a single use. However, in this case we are of the opinion that the bags, decorated as previously noted, have been designed for prolonged use. We note that these bags are imported empty and that they are subsequently filled with a 27 piece toddler feeding set and then sold at retail as a unit. The bag is of a kind sold at retail on its own merits and is not of a disposable kind normally used for packing of various feeding utensils, cups, plates or containers. The contents of the feeding set are for prolonged use and are similar to items which may be individually purchased and utilized over a prolonged period. The bag is of a kind designed to contain many various personal effects such as beach, pool and gym accessories, toiletries, garments, etc. The bag, when filled subsequent to importation, provides storage, protection, organization and a degree of portability for the articles placed therein. It is similar to PVC travel bags either sold on their own or with other personal effects, cosmetics or toiletries. It is not of a disposable kind normally used to temporarily hold its contents.

In Totes, Inc. v. United States, Slip Op. 94-154, the Court of International Trade (CIT) noted that if an article exhibits the characteristics which are common to all the exemplars, it is properly classified in the same heading as the exemplars. The CIT held that heading 4202, HTSUSA, did not have a requirement that an article be for travel although portability is a feature - 3 -
which could be utilized for classification on the subheading level. The Court made no distinction as to quality or duration for which the article is designed to be used. It noted a PVC garment bag of the kind designed to be carried over the shoulder by means of a hanger and either given to purchasers of a garment upon purchase or sold at retail on their own merits as an example of an article which is of a kind similar to those of heading 4202, HTSUSA. The instant PVC bag is similar.


Bags of plastic sheeting which are designed to be filled with various items subsequent to importation, to provide for the storage, protection, organization and portability of those items and are designed for prolonged use are classifiable in subheading 4202.92.4500, HTSUSA. Articles so classified are subject to a general rate of duty of 20 percent ad valorem.

Since the classification indicated above is the same as the liquidation classification, you are instructed to deny the protest in full.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3(A)(1)(b) of Customs Directive 099 3550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Tariff Classification Appeals

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