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HQ 964450




August 8, 2002

CLA-2 RR:CR:TE 964450 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3031

Mr. Barry E. Cohen
Ms. Nancy S. Bryson
Crowell & Moring, LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C.
20004-2595

RE: Shopping Bags; Gift Bags; Tyvek™; Reconsideration of NY F80002 (Dec. 23, 1999); Subheading 4202.92.3031, HTSUSA; Substantial Construction; Prolonged Use.

Dear Counsel:

The purpose of this correspondence is to respond to your request dated June 9, 2000, seeking an administrative review of New York Ruling Letter F80002 (Dec. 23, 1999). The request for reconsideration, filed on the behalf of your client, E. I. DuPont de Nemours & Company, Inc. (Dupont), concerns merchandise identified as “gift bags” composed of a trademarked material known as Tyvek™.

The Customs Service notes at the outset that the initial ruling request sent to the National Commodity Specialist Division in New York stated that the merchandise subject to classification consideration would be used as gift bags and for the conveyances of purchased goods.

This reconsideration is being issued subsequent to the following: (1) A review of your submission dated June 9, 2000; (2) A review of the DuPont World Wide Web sites providing information on Tyvek™, www.dupont.com and www.tyvek.com; and (3) An examination of the sample bags.

FACTS

The articles in issue are textile bags composed of a nonwoven fabric. The fabric is a trademarked product known as Tyvek™.

Sample 1 is nine and one-half (9 ½) inches in depth, eight and one-eighth (8 1/8) inches across the front, and four and three-eighths (4 3/8) inches in width. The material of which the bag is composed is folded-over at the top approximately one (1) inch. Two braided cord-like handles are attached and tied-off through two holes on each side of the bag. Cardboard placed behind the folded-over textile material at the top of the bag through which the handles are tied-off provides additional structural support for the handles.

Sample 2 is ten and one-half (10 ½) inches in depth, eight and one-eighth (8 1/8) inches across the front, and four and three-eighths (4 3/8) inches in width. The bag has two inverted U-shaped twisted paper handles, one attached to each side of the bag. The handles are attached by means of two strips of paper between which the ends of the handles are glued. The strips of paper are then glued to the sides of the bag.

The exterior of each bag is decorated with an antique gold, flower design. The interior of each bag is printed in a pattern designed to cover the fabric at all times with “Tyvek™, Sendables™ and the DuPont® company logo.

The DuPont company holds the trademark on Tyvek™. Tyvek™ is a “high-density polyethylene fiber product.” Submission of Counsel, June 9, 2000, p. 3. Counsel further advises Customs that Tyvek™ is a “spunbonded olefin material which combines some of the properties of paper, film, and cloth and is of a similar density, and provides an excellent substrate for printing and decorative designs.” Id. at p.3.

The Tyvek™ web site indicates that Tyvek™ is “lightweight, yet strong; vapor-permeable, yet water-, chemical-, puncture-, tear-, and abrasion-resistant.” According to the Tyvek™ web site, the fabric is used to make protective apparel, envelopes, sterile medical packaging, car, boat and camper coverings, and has construction industry and graphics applications.

See www.tyvek.com/whatistyvek.htm

The Customs Service is advised that the Tyvek™ fabric will be manufactured in the United States and exported to China in bulk rolls. The fabric will be “converted into general purpose gift bags” in China. Id. at p.3.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described Tyvek™ bags with handles ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service. See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, 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. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 2, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the bags, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4202, HTSUS, provides for the classification of:

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, insulated food or beverage 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. (Emphasis added).

Customs initially notes that heading 4202, HTSUS, does not designate the Tyvek™ bags eo nomine, that is by name. Since the tariff schedule does not list the Dupont® Tyvek™ bags, the initial issue is whether the articles subject to classification consideration are ejusdem generis, that is of the same kind of articles as those listed in the heading.

Customs review of heading 4202, HTSUS, leads it to “shopping bags” designated eo nomine in the second aspect of the heading. The second part of the heading is the part that follows the semicolon. Articles listed in the second half of heading 4202, HTSUS, in order to be classified in heading 4202, HTSUS, must, in addition to being listed in the heading, also be composed of one of the enumerated materials. The Dupont® Tyvek™ bags are composed of a nonwoven, man-made textile material, one of the materials of which articles classified in the second part of heading 4202, HTSUS, must be composed.

Heading 4202, HTSUS, in addition to listing “shopping bags,” follows that enumeration with the phrase “and similar containers.” Employing the phrase “and similar containers” necessitates this office to exercise the ejusdem generis rule of statutory construction. See Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999). The Dupont® Tyvek™ bags will be considered containers similar to shopping bags “if [they] possesses the essential characteristics or purposes uniting the listed exemplars” and do not have “a more specific primary purpose that is inconsistent with the listed exemplars.” Avenues in Leather, Supra. at 1244.

The essential characteristics and purposes of the exemplars listed in heading 4202, HTSUS, was addressed by the Court of International Trade in Totes, Inc. v. United States, 865 F. Supp. 867 (Ct. Int’l Trade 1994) aff’d 69 F.3d 495 (Fed. Cir 1995). The court in Totes held that the articles designated eo nomine in heading 4202, HTSUS, are designed to organize, store, protect and carry various items.

“Shopping bags,” as a specific article designated eo nomine in heading 4202, HTSUS, is afforded a supplementary definition in Additional U.S. Note 1 of Chapter 42, HTSUSA. Additional U.S. Note 1 provides that “travel, sports and similar bags” are “goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.” (Emphasis added). Chapter 42, Additional U.S. Note 1, HTSUS.

It is the decision of this office that the Dupont® Tyvek™ bags are ejusdem generis with the articles identified by name in heading 4202, HTSUS, and, more specifically, with shopping bags as addressed in Additional U.S. Note 1. See HQ 954705 (Jan. 14, 1994). The Dupont® Tyvek™ bags are designed to organize, store, protect and carry clothing and other personal effects during travel.

Although Counsel suggests that the bags are only “general purpose gift bags” designed “to be used as an alternative to paper or plastic gift-wrapping,” Customs concludes otherwise. Significant to the determination made by the Customs Service is the fact that the Dupont® Tyvek™ bags are of substantial construction, designed and capable of prolonged use. The bags are almost impossible to tear. The specific bags subject to this reconsideration may only be marketed as gift bags, but similar, if not identical bags have numerous uses. Bags of this size, construction and durability are used by retailers to package sales and then frequently re-used by the consumers to carry lunches and other personal items. It is Customs conclusion from an examination of the Dupont® Tyvek™ bags that their re-use will probably be discontinued not because of wear, but because of soiled appearance. See contra NY H83552 (July 27, 2001) (classifying a bag of less substantial construction in heading 6307.90.9989, HTSUSA).

Although the articles in issue are not made of plastic, Customs is cognizant of Chapter 42, Note 2(A)(a). Note 2(A)(a) provides that “[b]ags made of sheeting of plastic, whether or not printed, with handles, not designed for prolonged use” are classified in heading 3923, HTSUS. Harmonized Tariff Schedule of the United States, Chapter 42, Note 2(A)(a). The reverse analogy implies that bags of sheeting of plastic designed for prolonged use are properly classified in heading 4202, HTSUS. Customs, subsequent to a review of this chapter note and the articles designated eo nomine in heading 4202, HTSUS, concludes that if a bag is of such a construction and design that it is reasonably suitable for prolonged use, then it is properly classified in heading 4202, HTSUS, as being of the same kind of merchandise as “shopping bags.”

The Customs Service specifically decided against using size as a determining factor concerning whether the Dupont® Tyvek™ bags are ejusdem generis with “shopping bags.” It is the appreciation of the Customs Service that Congress, when it assigned Customs the responsibility of interpreting and applying the tariff schedule, intended the agency to do so in a manner that could be administered by Customs. Determinations addressing size are most difficult and frequently impossible to administer uniformly across all of the ports of entry through which merchandise may be imported into the United States. Delineations such as “large” and “small” too frequently mean different things to different people, including both Customs personnel and the importing community. Setting criteria by height or volume is also difficult to establish as the difference of an eighth or a fourth of an inch in size is more likely insignificant to the use of a bag.

It is Customs determination that decisions concerning whether a bag is ejusdem generis with a shopping bag is best decided based on whether the article is designed to organize, store, protect and transport merchandise and the durability of its construction. The Dupont® Tyvek™ bags are designed to organize, store, protect and transport merchandise and are designed and constructed for prolonged use.

Continuing the classification of the Dupont® Tyvek™ bags with an outer surface of textile material, the articles are classified in subheading 4202.92.3031, HTSUSA. Subheading 4202.92.3031, HTSUSA, provides for the classification of:

Trunks, suitcasesand similar containers;shopping bagsand similar containers,of textile materials:

Other:
With outer surface of sheeting of plastic or of textile materials:

Travel, sports and similar bags:
With outer surface of textile materials:
Other,

Other.

Counsel for Dupont directs Customs attention to a line of rulings addressing gift bags in which the articles were classified in heading 6307, HTSUS. See HQ 957464 (April 18, 1995), HQ 963394 (Oct. 18, 1999), HQ 961955 (Dec. 21, 1999) and HQ 963357 (Dec. 21, 1999). Counsel suggests that the merchandise in these rulings is substantially similar to the Dupont® Tyvek™ bags and that Dupont’s merchandise should be similarly classified in heading 6307, HTSUS.

Customs reviewed the ruling cited as authority by counsel for Dupont and concludes that the merchandise is not substantially similar. The bags in issue in the cited rulings, although capable of being used on more than one occasion, were not designed, constructed or capable of reuse as are the Dupont® Tyvek™ bags. The merchandise in the rulings referenced by Dupont were not of substantial construction. The Dupont® Tyvek™ bags, as previously discussed, are of substantial construction. Counsel suggests that Dupont’s bags offer articles carried in the bags no greater protection than an ordinary paper bag. This suggestion fails to acknowledge that an ordinary paper bag will tear and weaken for numerous reasons long before Dupont’s bag loses its ability to retain its contents. Customs, for the reasons addressed, concludes that the rulings referenced by counsel for the importer are not analogous and do not support the classification of the Tyvek™ bags in heading 6307, HTSUS.

HOLDING

The Dupont® Tyvek™ bags composed of nonwoven polypropylene textile fabric are classified in subheading 4202.92.3031, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is eighteen and one-tenth (18.1) percent ad valorem.

The textile quota category is 670.

There are no applicable quota/visa requirements for products of World Trade Organization (WTO) member-countries classifiable in this provision. The textile category number above applies to merchandise produced in non-WTO member-countries.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels) an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at the local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Ruling Division

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