CLA-2:CO:R:C:G 081876 SR
Jeanne M. Burns
Thornley and Pitt, Inc.
48 Gold Street
San Francisco, CA. 94133
RE: Classification of plastic bags
Dear Ms. Burns:
This is in response to your letter of January 10, 1988,
requesting the tariff classification of plastic bags under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). A sample was submitted.
FACTS:
The merchandise involved is polyethylene plastic bags to
be used in retail stores to pack produce, meat, dairy products,
and frozen foods. The bags are used to keep moisture from food
products from wetting an outside bag used to transport the
items home.
ISSUE:
1. Whether the results reached in a court case decided under
the Tariff Schedules of the United States (TSUS) controls the
classification of the instant merchandise under the HTSUSA.
2. Whether the bags are classifiable under subheading 3923.29,
HTSUSA, as articles for the conveyance or packing of goods, of
plastics.
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LAW AND ANALYSIS:
ISSUE NO. 1
Item 772.20, TSUS, provides for containers of rubber or
plastics, with or without their closures, chiefly used for the
packing, transporting, or marketing of merchandise. It has
been suggested that the principle ennunciated in the case of
Imperial Packaging Corp. v. United States, 2 C.I.T. 250 (1981),
controls the classification of the plastic bags at issue under
the HTSUSA. The court in Imperial, supra, held that the word
merchandise (as used in item 772.20, TSUS), refers to goods
that are still in the stream of commerce and does not include
articles which are personal effects or commodities in the hands
of the ultimate consumer. The court also stated that "clear
plastic bags for produce, usually in rolls on elevated racks
and perforated for easy removal, are also excluded if used in
the supermarket at the point of sale." Id. at 253.
The TSUS is not controlling over the HTSUSA. Although the
two provisions appear to be very similar the terms are not the
same. Each provision must be narrowly construed by the
language provided. The word "goods" is not the same as the
word "merchandise" and therefore is not to be interpreted the
same way "merchandise" was under the TSUS, as referring only to
articles still in the stream of commerce. This is further
supported by the fact that plastic shopping bags which are
excluded from item 722.20, TSUS, because they are used in the
packing and conveyance of goods outside the stream of commerce
are specifically stated to be classified under heading 3923.29,
HTSUSA.
ISSUE NO. 2
Heading 3923, HTSUSA, states: "Articles for the conveyance
or packing of goods, of plastics; stoppers, lids, caps and
other closures, of plastics." The plastic bags at issue are
used for the packing and conveyance of foods from the grocery
store to the homes of the consumers.
The classification of these plastic bags under heading
3923, HTSUSA, is supported by heading 4202, HTSUSA. Heading
4202, HTSUSA, covers, among other items, shopping bags. Note
2(a) to chapter 42 states that heading 4202 does not cover bags
made of plastic sheeting, whether or not printed, with handles,
not designed for prolonged use. It specifies that these
plastic shopping bags are to be classified under heading 3923,
HTSUSA. Shopping bags, like the bags at issue, are provided to
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consumers at the time of purchase. Shopping bags are designed
to package or convey articles which are commodities in the
hands of the ultimate consumer and which are no longer in the
stream of commerce. The inclusion of plastic shopping bags in
heading 3923, HTSUSA, is an indication that the provision
includes all types of articles for the conveyance or packing of
goods, regardless of whether they are used for merchandise
still in the stream of commerce or in the hands of the
consumer.
HOLDING:
ISSUE NO. 1
The word "goods," as used in 3923.29, HTSUSA, is not
intrepreted the same way as "merchandise," as used in 772.20,
TSUS, was interpreted by the court in Imperial, supra.
ISSUE NO. 2
The bags at issue are classifiable under subheading
3923.21.00, HTSUSA, as articles for the conveyance or packing
of goods, of plastics, sacks and bags, of polymers of ethylene.
The rate of duty is 3 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6cc: Area Director, New York Seaport
SRosenow:jaj:11/1/88