OT:RR:CTF:CPMMA H328217 DAC
TARIFF: 4202.92.45
Center Director
Consumer Products & Mass Merchandising
Center of Excellence and Expertise
157 Tradeport Drive, Suite B
Atlanta, Georgia 30354
Attn: SCBPO Terri L. Edward, Port Director of New Orleans
RE: Internal Advice; Classification of 100% coated polypropylene bags.
Dear Center Director:
This is in response to the August 28, 2020, request for Internal Advice made by counsel on behalf of Beads by the Dozen (hereinafter, “Beads” or “requester”), regarding the classification of 100% coated polypropylene bags for use in parades. The requestor contends that the subject merchandise should be classified under subheading 6305.33.0040, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for, “[s]acks and bags, of a kind used for the packing of goods: Of man-made textile materials: Other, of polyethylene or polypropylene strip or the like.... Other: Weighing less than 1 kg, with an outer laminated ply of plastics sheeting[.]” Similarly, Beads contends in the internal advice submission that the merchandise was initially misclassified by U.S. Customs and Border Protection (CBP) under heading 4202, HTSUS, rather than in heading 6305, HTSUS, based on an inaccurate product description.
FACTS:
The subject merchandise was imported into the United States through the Service Port of New Orleans. According to the internal advice submission from Beads “the bags are made of 100% polypropylene material coated with a thin layer of oriented polypropylene to allow a logo to be printed on the sides of the bag.” Beads further states that “the manufacturer constructs the bags by putting together thin strips of polypropylene; the thickness of each strip is between 1.7 mm to 2.0 mm.” Additionally, Beads states the bags are used in New Orleans for the storage and transport of beaded novelty necklaces, also known as the “beads,” before, during and after festivals and parades held in New Orleans. The submission further states that the sturdy construction of the bag is to ensure the bags can carry up to 31 pounds of beads and can withstand inclement weather, and the handle of the bag makes carrying the fully loaded bags less cumbersome and the zipper enables the bags to be securely closed. Images of a sample of the subject bags are provided below.
Image of sample bag Top view of sample bag (zipper closed)
Top view of sample bag (zipper open) Detail of handle on bag
Prior to February 2011, Beads imported polypropylene bags from China under subheading 3923.29.0000, HTSUSA, which provides for “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of other plastics,” with a duty rate of 3 percent ad valorem.
In February 2011, Beads was advised via a CF29 for Entry xxx-xxx5164 that the plastic zipper bag with handle, item K-ZB/Crown/01, would be properly classified under 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 plastics, 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 plastics or of a textile
materials: Other,” and rate advanced to 20 percent ad valorem.
In April 2011, Beads was advised via a CF29 that the 19 x 19 blue plastic zip bag with a 36” handle would also be correctly classified under heading 4202, HTSUS. Beads was advised that the article was a reusable shopping-style tote bag with an outer surface of plastic sheeting designed for prolonged use.
In October 2011, CBP denied three (3) protests, 2002-11-100035, 2002-11-100081, and 2002-11-100036 and informed Beads that the reusable shopping style tote bags were properly classified under subheading 4202.92.4500, HTSUSA.
On August 28, 2020, Beads filed a request for internal advice with the Port of New Orleans which was forwarded to CBP Headquarters.
Since 2011, Beads has imported its bags under subheading 4202.92.4500, HTSUSA. However, they contend that the bags are now properly classified under subheading 6305.33.0040, HTSUSA, which provides for “Sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Other, of polyethylene or polypropylene strip or the like…. Other: Weighing less than 1 kg, with an outer laminated ply of plastics sheeting: Printed with three or more colors,” with a duty rate of 8.4 percent ad valorem.
ISSUE:
Whether the subject “bead sacks” are classified in heading 4202, HTSUS, as “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 textile materials,” or in heading 6305, HTSUS, as “sacks and bags, of a kind used for the packing of goods.”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). “GRI 1 dictates that classification shall be determined according to the terms of the headings and any relative section or chapter notes.” Amcor Flexibles Singen GmbH v. United States, 425 F. Supp. 3d 1287, 1298 (C.I.T. 2020). In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order. GRI 6 states that, “[f]or legal purposes, the classification of goods in the subheadings 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.”
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that:
In the absence of special language or context which otherwise requires: … a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
* * *
The HTSUS provisions under consideration are as follows:
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 plastics, of
textile materials, of vulcanized fiber or of paperboard, or wholly
or mainly covered with such materials or with paper: (con.)
Other: (con.)
4202.92 With outer surface of sheeting of plastics or of textile
materials: (con.)
Travel, sports and similar bags: (con.)
4202.92.45 Other
* * *
6305 Sacks and bags, of a kind used for the packing of goods:
Of man-made textile materials:
6305.33.00 Other, of polyethylene or polypropylene strip or the
Like:
Other:
Weighing less than 1 kg, with an outer
laminated ply of plastics sheeting:
6305.33.00.40 Printed with three or more colors
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System (hereinafter “Harmonized System”) represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention (which includes the United States) or considered to be dispositive in the interpretation of the Harmonized System, the ENs should be consulted on the proper scope of the Harmonized System. Id.
Note 1(l) to Section XI (covering goods of chapter 50-63) provides that the section does not cover:
(l) Articles of textile materials of heading 4201 and 4202.
U.S. Additional Note 1 to Chapter 42, states:
For the purposes of heading 4202, the expression “travel, sports and similar bags” means 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. The EN to heading 4202 states, in pertinent part: This heading covers only the articles specifically named therein and similar containers. These containers may be rigid or with a rigid foundation, or soft and without foundation.
* * *
EN 63.05 provides, in pertinent part, as follows:
This heading covers textile sacks and bags of a kind normally used for the packing of goods for transport, storage or sale. These articles, which vary in size and shape, include in particular flexible intermediate bulk containers, coal, grain, flour, potato, coffee or similar sacks, mail bags, and small bags of the kind used for sending samples of merchandise by post. The heading also includes such articles as tea sachets.
Beads requests classification of the polypropylene bags under subheading 6305.33.0040, HTSUSA, its receipt of an October 2011 prior determination classifying the articles in heading 4202 notwithstanding, as set forth above. Beads has not provided any new or additional information in regards to the subject merchandise that would change the HTSUS classification from the prior determinations made in 2011. Nor has there been any change to the text of subheading 4202.92.4500, HTSUSA, since 2011. In sum, there has been no change to the merchandise, facts or the law or relevant facts to change the prior classification determinations regarding the subject merchandise.
In Headquarters Ruling Letter (HQ) W968162, dated May 21, 2007, CBP stated that “[i]t is clear that the articles listed under heading 6305, HTSUS, are of the type used for commercial merchandise being transported or stored for sale, usually in bulk.” In HQ H295656, dated May 30, 2019, CBP stated that “CBP has consistently interpreted heading 6305, HTSUS, to only cover a narrow range of textile packing products.” See, e.g., HQ H275824, dated March 13, 2017; HQ W968162, dated May 21, 2007; HQ 960798, dated December 22, 1997; and, HQ 952755, dated December 30, 1992. The exemplars listed in the ENs to 63.05 consist of bags or sacks for the packing of flowable or other goods for transport, storage or sale.” The bead bags at issue are not of sufficient size to transport or store commercial bulk goods. Therefore, CBP concludes, as it has since 2011, that the goods are not classifiable under heading 6305, HTSUS.
To be classified heading 4202, an article must be considered a “similar container” to containers listed in either portion of the heading. It has long been held that the characteristics that unite the containers in heading 4202 are organizing, storing, protecting and carrying various items. See Otter Prods., LLC v. United States, 70 F. Supp. 3d 1291 (CIT 2015) aff’d, 834 F.3d. 1369 (Fed. Cir. 2016), Avenues in Leather, Inc. v. United States (Avenues III), 423 F.3d 1326, 1330 (Fed. Cir. 2005). See also Avenues III, 423 F.3d at 1331 (quoting Avenues in Leather, Inc. v. United States (Avenues II), 316 F.3d 1399, 1402 (Fed. Cir. 2003)). In Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed. Cir. 1998), the court agreed with CBP that a car trunk organizer with straps and a zippered opening was classified in heading 4202, HTSUS, because it was similar to articles in named in heading 4202, HTSUS, in that it organized, stored, protected and carried the articles contained therein. Totes, Inc., 69 F.3d at 496. While a handle, strap or closure is not dispositive of the issue, in this case, the straps and sturdy construction are indicative of such use. Additionally, based upon the description provided by Beads, it is designed to secure items for transport from place to place. As such, it is similar to the named articles in heading 4202, HTSUS, and should therefore be classified therein.
Subheading 4202.92, HTSUS, provides for “other” bags with an outer surface of sheeting of plastic. CBP has developed a practice of referring to certain bags in subheading 4202.92, HTSUS, as “tote bags.” See, e.g., J.E. Mamiye & Sons, Inc. v. United States, 85 Cust. Ct. 92, 102 (1980), HQ 082271, dated December 1, 1988, and HQ H004184, dated July 2, 2007. In J.E. Mamiye & Sons, the U.S. Customs Court (predecessor to the U.S. Court of International Trade) stated that “tote bags are utilized by women as second handbags to carry items which do not ordinarily fit within a handbag.” Id. at 102. This definition of tote bags is not binding because the U.S. Customs Court was referring to a provision in the Tariff Schedule of the United States (predecessor to the HTSUS). However, the U.S. Customs Court’s definition closely mirrors AUSN 1 to Chapter 42, which states that “‘travel, sports and similar bags’ means goods, other than those falling in subheadings 4202.11 through 4202.39, [HTSUS,] of a kind designed for carrying clothing and other personal effects during travel.” In HQ H201158, dated September 18, 2014, and HQ H140975, dated April 5, 2011, CBP classified similar merchandise to the bag at issue, stating that CBP has established several factors to distinguish tote bags of subheading 4202.92, HTSUS. Tote bags generally have at least one side which exceeds 12 inches in length and can carry many different sundry items such as food, books or clothing. See HQ H133616, dated July 7, 2011. Accordingly, we find that the bead bags at issue are tote bags of subheading 4202.92, HTSUS.
CBP finds that heading 6305, HTSUS, is not a proper heading because the subject polypropylene bags are not “sacks or bags, of a kind used for the packing of goods.” CBP concludes that the subject polypropylene bags are properly classified under subheading 4202.92.4500, HTSUSA.
HOLDING:
By application of GRI 1, the subject merchandise, bags that are made of 100% polypropylene material coated with a thin layer of oriented polypropylene to allow a logo to be printed on the sides of the bag, are classified under subheading 4202.92.45, HTSUS, 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 plastics, 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 plastics or of textile materials: Travel, sports and similar bags: Other.” The 2023 column one, general rate of duty is 20% ad valorem.
Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at https://hts.usitc.gov/current.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director Commercial and Trade Facilitation Division