CLA-2 OT: RR: CTF: TCM H249780 ERB
Port Director, Port of Atlanta
U.S. Customs & Border Protection
157 Tradeport Drive
Atlanta, GA 30354
RE: Internal Advice Request; Classification of reusable shopping bags
Dear Port Director:
This letter is in response to a request from your office on January 27, 2014 for internal advice in accordance with 19 C.F.R. § 177.11, concerning importations made by EcoGuardian LLC (EcoGuardian). At issue is U.S. Customs and Border Protection’s (CBP) classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two entries of one model of a reusable shopping bag. Samples were provided to CBP for use in this analysis, and are being returned with our decision.
As a threshold matter, EcoGuardian filed its protest in a timely manner, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3)(2006)), and the matter is protestable pursuant to 19 U.S.C. § 1514(a)(2) as a decision on classification. However, EcoGuardian has not provided any criterion set forth in 19 C.F.R. § 174.24 which provides that further review of a protest shall be accorded a party filing an application for further review which meets the requirements of § 174.25 when the decision against which the protest was filed:
(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;
(b) Is alleged to involve questions of law or fact which have not been ruling upon by the Commissioner of Customs or his designee or by the Customs courts;
(c) Involves matters previously ruled upon by the Commissioner or Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or
(d) Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to § 177.11(b)(5) of his chapter.
Specifically, EcoGuardian stated in Box 16, Justification for Further Review Under the Criteria in 19 CFR § 174.24 and § 174.25, “N.A.” EcoGuardian did provide an undated, unsigned written narrative describing its position in this matter, but this letter does not negate the requirements that a protestant identify justification for further review as set forth in the regulations. That said, this office will treat this matter as a request for Internal Advice.
FACTS:
There is one bag model at issue. It is a woven polypropylene bag (WPP). The first entry at issue entered on January 1, 2012 and was liquidated on January 18, 2013. The second entry at issue entered on June 28, 2012 and was liquidated on March 22, 2013. EcoGuardian entered the subject merchandise under subheading 3923.29.00, HTSUS, which provides for, “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags: Of other plastics.”
A sample provided to CBP was sent to CBP’s Laboratory for Scientific Services (LSS) for analysis. The following questions were posed to them for their response: (1) whether the bag is made from polypropylene or other plastics; (2) whether the bag is made of woven strips, and if so, (3) what are the width of the strips. In response, CBP Laboratory Report SV20122253, dated December 3, 2012 stated the following:
The sample is a woven shopping bag with two handles in the middle. The bag consists of a woven fabric of polypropylene strips that has a layer of polypropylene plastic on both surfaces and an additional layer of polyethylene plastic on the outside of the bag. The polypropylene plastic strips are 3 mm (avg. of five) in apparent width.
The average dimension of the bag is:
Height: 14.6 in or 371 mm
Width: 12.8 in or 325 mm
Depth: 7.6 in or 193 mm
On March 4, 2013 CBP issued a Notice of Action (CF-29) notifying EcoGuardian that the goods were properly classified in subheading 4202.92.4500, HTSUSA (Annotated), with a duty rate of 20% ad valorem. The CF-29 further stated that the goods would be rate advanced, and a bill sent for the duty owed.
On May 17, 2013 EcoGuaridan filed a Protest with the Port of Atlanta alleging the correct classification of the bags was 4202.92.3031, HTSUSA with a general rate of duty of 17.6% ad valorem and a secondary classification under subheading 9902.40.01, HTSUS, which extends a temporary duty reduction to 0%.
ISSUE:
What is the classification of a woven polypropylene reusable shopping bags?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The following HTSUS provisions are under consideration:
4202 Trunks, suitcases, vanity cases, attaché 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 plastic, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
Other:
4202.92 With outer surface of sheeting of plastic or of textile materials:
Travel, sports and similar bags:
With outer surface of textile materials:
4202.92.30 Other:
Other:
Of man-made fibers:
4202.92.3031 Other
4202.92.4500 Other
***
9902.40.01 Shopping bags with an outer surface of spun bonded polypropylene fabric or nonwoven polypropylene fabric (provided for in subheading 4202.92.30).
As the classification analysis of the subject merchandise occurs beyond the four-digit heading level, GRI 6 is implicated. GRI 6 states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter, and subchapter notes also apply, unless the context otherwise requires.
EcoGuardian argues that the model at issue here is eligible for special duty-free tariff treatment under subheading 9902.40.01, HTSUS. This provision, by virtue of legislative action, provided for a temporary reduction in the rate of duty for shopping bags with an outer surface of spun bonded polypropylene fabric or nonwoven polypropylene fabric, which is provided for specifically in subheading 4202.92.30, HTSUS. This legislation expired on December 31, 2012 and to date has not been renewed. But duty free treatment will be afforded to goods that comply with the bills’ requirements, and which are entered or withdrawn from warehouse for consumption on or before the expiration date.
To qualify for special tariff treatment under a special provision, the subject merchandise must meet all of the precise prerequisites of the provision. For subheading 9902.40.01, HTSUS, those prerequisites are as follows:
The article must be a shopping bag. Products other than shopping bags (for example, garment bags, duffle bags) are excluded from subheading 9902.40.01, HTSUS even if they meet the other prerequisites.
The shopping bags must be constructed in such a way as to have an outer surface of spun bonded or nonwoven polypropylene fabric. When the spun-bonded or nonwoven polypropylene fabric does not make up the outer most surface, the article is excluded from subheading 9902.40.01, HTSUS even if it meets the other prerequisites. Shopping bags constructed of other fabrics or other materials are also excluded.
The shopping bag must be otherwise classifiable under subheading 4202.92.30, HTSUS. Articles that would be classified elsewhere in the tariff or elsewhere within heading 4020 are excluded from subheading 9902.40.01, HTSUS even if they meet the other prerequisites.
The subject shopping bag is a shopping bag constructed of woven polypropylene textile material that is coated on the outer surface with plastic sheeting. It does not have an outer surface of spun bonded or nonwoven polypropylene fabric. Moreover, even without the plastic sheeting, the textile is woven. As such, they are classified in subheading 4202.92.45, HTSUS. See New York Ruling (NY) N216771, dated May 25, 2012 (classifying a woven polypropylene tote bag laminated on the outer surface with plastic sheeting in subheading 4202.92.45); and see NY L88752, dated November 22, 2005; NY N050523, dated March 3, 2009; and NY K81798, dated December 18, 2003). Thus, they are excluded from the secondary classification in subheading 9902.40.01, HTSUS, on this basis.
EcoGuardian argues that the subject bag should be classified according to its “end-use” and classified in the same manner as other bags used for the same purposes (i.e. carrying groceries and other personal effects). This is false. This subheading is not a “use provision” and how the consumer uses the product is irrelevant. By virtue of the tariff heading text the clear intent of Congress was to classify bags according to its physical characteristics and constituent parts and not according to its end use. Further, heading 9902, HTSUS, is even clearer insofar as it only applies to certain bags that meet the requirements stipulated in the text itself, e.g. “shopping bags with an outer surface of spun bonded polypropylene fabric or nonwoven polypropylene fabric (provided for in subheading 4202.92.30).” [Emphasis added] When the intent of Congress is clear, CBP does not have the authority to extend the special treatment to shopping bags other than those specifically provided for in subheading 9902.40.01, HTSUS.
HOLDING:
By application of GRI 1 and GRI 6, the subject woven polypropylene reusable shopping bags are classified in subheading 4202.92.4500, HTSUSA, which provides for “Trunks, suitcases, vanity cases, attaché 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 plastic, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastic or of textile materials: Other.” The column one, general rate of duty is 20% ad valorem.
Sixty days from the date of this decision, the Office of International Trade, Regulations and Rulings, will make this decision available for CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division