CLA-2 OT:RR:CTF:TCM W968444 JER
Port Director
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111-2316
RE: Request for Internal Advice; Earthwise Bag Co., Inc.; Non-Woven Polypropylene Shopping Bags; Heading 4202, HTSUS; Heading, 6307, HTSUS; Designed for Prolonged Use
Dear Port Director:
This is in response to an internal advice request submitted by counsel for Earthwise Bag Company, Inc., (Earthwise) in accordance with U.S. Customs and Border Protection (CBP) Regulations Part 177. Specifically, 19 C.F.R. §177.11 allows requests for "advice or guidance as to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction . . . from the Headquarters Office at any time, whether the transaction is prospective, current, or completed." 19 C.F.R. §177.11(a). The Port of San Francisco is seeking internal advice at the request of the importer concerning the classification of grocery and bottle shopping bags. Earthwise is currently entering the merchandise under subheading 4202.92.3031, Harmonized Tariff Schedule of the United States (HTSUS), as travel, sports bags and similar bags with a outer surface of man-made textile materials and subheading 4202.92.9026, HTSUS, as other bags with an outer surface of man-made textile materials, respectively.
FACTS:
The subject merchandise is made of a non-woven polypropylene textile material, with reinforced stitching throughout the body of the bag including the face panel, the edges, sides and seams along the bottom. The double-sided handles are stitched to the bag with reinforced stitching at the mouth of the bag. The handles created as straps run the length of the bag and are stitched along the front and back panels. The bags also feature a thick flexible plastic bottom stiffener which can be removed during washing. The bags measure 13.5 inches high by 12.5 inches wide by 8.5 in depth (comparable to a standard grocery bag). The items are described as being reusable, recyclable, durable, and washable. Exhibit A is a standard grocery shopping bag. Exhibit B is a bottle bag with six internal compartments. The subject merchandise is consistent with other Green Bags designed as an environmentally friendly alternative to single-use plastic shopping bags. These bags retail from $0.99 to $1.50. They are sold empty at grocery stores and other retail stores and are often given away as promotional items. To support their position, Earthwise submitted six (6) additional samples which include a canvas version of the shopping bag, Exhibits E and F, and a torn non-woven polypropylene bag and swatch, Exhibits C and D.
ISSUE:
At issue is whether the Earthwise Shopping Bags are properly classifiable under heading 4202, HTSUS, or whether the shopping bags should be excluded from heading 4202, HTSUS, by operation of Chapter Note 2 (A)(a) of heading 4202, and consequently classified in heading 6307, HTSUS, as other made-up textile articles not more specifically described in the tariff schedule.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:
4202 Trunks, suitcases, vanity cases … and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks …shopping bags … bottle cases … and similar containers … of sheeting of plastics, of textile materials … 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
* * *
Other:
4202.92.90 Other
With outer surface of textile materials:
Other:
4202.92.9026 Of man-made fibers
6307 Other made up articles, including dress patterns:
* * *
6307.90 Other:
* * *
6307.90.98 Other
Other:
6307.90.9889 Other
* * *
The relevant Legal Notes are as follows:
Chapter 42, Note 2(A) (a), provides:
… Heading 4202 does not cover:
(a) Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923)
Additional U.S. Note 1, Chapter 42, provides:
… 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 Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The relevant ENs are as follows:
The EN to heading 4202, HTSUS, provides, in pertinent part:
The heading does not cover: (a) Shopping bags, including bags consisting of two outer layers of plastics sandwiching an inner layer of cellular plastics, not designed for prolonged use, as described in Note 2 (A) (a) to this Chapter… (heading 39.23).
The EN to heading 6307, HTSUS, provides in pertinent part:
This heading covers made up articles of any textile material which are not included more specifically…elsewhere in the Nomenclature.
It includes, in particular:
* * *
(5) Domestic laundry or shoe bags…
(6) Garment bags … other than those of heading 42.02
However, the EN to heading 6307, HTSUS, also provides, in pertinent part:
… [The heading] further excludes:
(b) Travel goods … shopping bags, toilet-cases, etc., and all similar containers of heading 42.02
* * *
Heading 4202, provides, in pertinent part, for shopping bags, of sheeting of plastics, of textile materials or wholly or mainly covered with such materials. As such, the instant shopping bags are eo nomine exemplars of heading 4202, HTSUS. Shopping bags are also specifically named in Additional U.S. Note (1) to Chapter 42, HTSUS.
The Earthwise position is that the subject bags are not designed for prolonged use and therefore should be excluded from classification in heading, 4202, HTSUS. Counsel for Earthwise contends that despite an eo nomine provision for shopping bags in heading 4202, that the Earthwise shopping bags are classifiable under heading 6307, HTSUS. Counsel further argues that despite the fact that Chapter Note 2(A)(a) does not apply to non-woven polypropylene textile bags but rather expressly concerns bags made of sheeting of plastics, that the subject textile bags should be excluded from heading 4202 by operation of Chapter Note 2(A)(a) and other CBP rulings. Despite Counsel’s argument, we note here that Chapter Note 2(A)(a) applies specifically to “bags of sheeting of plastics” and should not be expanded to address bags of non-woven polypropylene or other textile fabrics.
The plain language of heading 6307, HTSUS, precludes a classification of shopping bags according to the inquirer’s position. Heading 6307, HTSUS, provides for other textile articles not more specifically described elsewhere in the tariff schedule. It is clear that shopping bags are specifically described elsewhere in the tariff schedule under heading, 4202, HTSUS. Furthermore, the terms of the competing headings and their relative explanatory and chapter notes demonstrate that shopping bags are not an article “nominally covered by descriptive language,” as Counsel suggests.
Nonetheless, because the subject merchandise is a shopping bag substantially similar to shopping bags discussed in prior rulings which distinguished those designed for prolonged use, we shall address the Earthwise position on the merits of their argument. Regarding the Wine Bottle Bag of Exhibit B, the same rules and analysis mentioned above and discussed infra apply here as the bottle bag is identical in construction, durability and purpose as the shopping bags of Exhibit A.
In support of their position, Counsel argues that CBP applied standards of durability and prolonged use in cases involving drawstring bags, laundry bags and bags made of textile material. (See Headquarters Ruling Letter (“HQ”) 964711, dated April 2, 2002 and HQ 964236, dated April 18, 2002, both of which classified laundry bags in heading 6307, HTSUS). We agree with Counsel that CBP has issued rulings classifying laundry bags, garment bags and drawstring bags of nylon, cotton and other textile fabrics under heading 6307, HTSUS. We do not agree that the rationale for such rulings rests on the issue of “prolonged use” but instead rests on issues of whether the bags were designed for traveling, packaging, or storing items pursuant to the rule of ejusdem generis. The rule of ejusdem generis requires only that the merchandise share the essential character or purpose running through the enumerated containers listed eo nomine in heading 4202, not whether such bags are designed for prolonged use as contemplated by Chapter Note 2(A)(a) or the Explanatory Note for heading 4202.
In the cases cited by Counsel, HQ 964711 and HQ 964236, the distinction drawn between heading 6307, HTSUS and heading 4202, HTSUS, rested upon the purpose and intended use of the bags. While neither case made reference to “prolonged use,” the issue of durability was determinative in deciding whether the bags had the capacity to protect items during travel. Specifically, HQ 964711 addressed whether the bags were durable and suitable for laundry, storage and travel purposes. As such, rulings which have distinguished heading 6307, HTSUS, and heading 4202, HTSUS, have consistently considered the purpose or intended use of the bag rather than the time frame for such use. (See HQ 954948 and HQ 955012, both dated, October 28, 1993, where in CBP distinguished drawstring bags of heading 6307, HTSUS, and bags of heading 4202, HTSUS). Under the purpose and intended use analysis, it is common for laundry and drawstring bags to find classification in heading 6307. The EN to heading 6307, at page 867, states in pertinent part that heading 6307 includes laundry bags, shoe bags and garment bags other than those of heading 4202, HTSUS. By contrast, the EN to heading 6307, states that the heading “excludes…shopping bags… and all similar containers of heading 42.02.” This EN exclusion is reflected in the absence of rulings classifying shopping bags under heading 6307, HTSUS.
In Totes, Inc. v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 872 (1994), aff’d, 14 Fed. Cir. (T), 69 F.3d 495 (1995), the Court of International Trade concluded that the “essential characteristics and purpose of the Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” With respect to the broad reach of the residual provision for “similar containers” in heading 4202, HTSUS, the Court found that the rule requires only that the imported merchandise possess the essential characteristics or purpose running through all of the enumerated exemplars.
CBP has on several occasions ruled that wine bottle bags and other similar containers had the essential characteristics and purpose of organizing, storing, protecting and carrying various items. In HQ 963411, dated October 19, 1999, CBP classified a wine bottle bag under heading 4202, HTSUS, to the exclusion of heading 6307, HTSUS, and rationalized that the wine bottle bag possessed the essential characteristics and purpose of the enumerated exemplars of heading 4202. Likewise, in HQ 960367, dated August 6, 1997 and HQ 963222, dated August 19, 1999, CBP ruled that classification in heading 4202, HTSUS, rather than heading 6307, HTSUS, was proper for wine bottle bags whose essential character and purpose was protecting, storing and carrying wine bottles. Furthermore, CBP has excluded other substantially constructed bottle bags from heading 6307, HTSUS, finding that a bottle bag which shared the fundamental characteristics attributable to containers of heading 4202 warranted classification under heading 4202, HTSUS, rather than heading 6307, HTSUS.
Under the “prolonged use” test, CBP has ruled that bags of sheeting of plastics which were of flimsy construction, not durable and although capable of reuse, were not designed for continued repeated use. (See HQ 952218, dated October 29, 1992 and HQ 954715, dated February 17, 1994). The “prolonged use” test of heading 4202 is articulated in Chapter Note 2(A)(a) to Chapter 42, HTSUS, which states that the heading does not cover “Bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923).” Explanatory Note 42.02 (a) expounds upon that exclusion by stating that “heading 4202 does not cover: shopping bags, including bags consisting of two outer layers of plastics sandwiching an inner layer of celluar plastics, not designed for prolonged use, … (heading 39.23).” It follows that bags excluded from heading 4202, HTSUS, because they are not designed for prolonged use are therefore classifiable under heading 3923, HTSUS, as opposed to heading 6307, HTSUS.
In prior rulings where shopping bags were excluded from heading 4202, HTSUS, pursuant to Chapter Note 2 (A)(a), we have looked to several factors in determining whether a bag was designed for prolonged use. In HQ 953077, dated April 26, 1993, and HQ 962033, dated November 29, 1999, we determined that bags made of flimsy materials such as polyethylene, containing no middle material or inner layer was not likely to last through several uses. Likewise, bags of thin polyethylene film, with heat sealed or molded plastic handles that were capable of limited reuse, were deemed not designed for prolonged use. By contrast bags of more durable construction, of a type sold empty at retail and intended for repeated use, were classified in heading 4202, HTSUS. (See 965039, dated April 1, 2002). Furthermore, while we have not explicitly stated that a bag is designed for prolonged use only if it is capable of 50 to 100 uses, we have found that a bag intended for such use is classifiable under heading 4202, HTSUS. (See HQ 962033).
In HQ 953077, we excluded shopping bags from heading 4202, HTSUS, despite the fact they could be re-used. We reasoned that the bags were similar to plastic or paper shopping bags which were capable of re-use, but intended for single-use. Likewise, in HQ 082831, dated September 26, 1990 and HQ 082998, dated October 23, 1989, we stated that polyethylene plastic bags which are used at retail to pack and transport groceries home have routinely been excluded from heading 4202, HTSUS. The shopping bags in those cases were intended only to carry groceries home, they were not designed for prolonged use. In the foregoing decisions, because the bags were either intended for single use or limited reuse, they were excluded from heading 4202, HTSUS, by virtue of Chapter Note 2(A)(a), Chapter 42, HTSUS, and ultimately classified under heading 3923, HTSUS.
The subject merchandise, a non-woven polypropylene shopping bag (Exhibit A) and a non-woven polypropylene wine bottle bag (Exhibit B), feature stitched reinforced handles, with reinforced stitching throughout the body of the bag including the face panel, the edges and seams and along the bottom, a flexible removable plastic bottom support stiffener, and are composed of non-woven polypropylene textile material. The items are described as being durable, washable, reusable and designed for several dozen uses with a bag-life of several months.
We are of the opinion that the Earthwise bags have been designed for prolonged use because i) they are constructed of a durable non-woven polypropylene, ii) they have a cardboard bottom stiffener, iii) the Earthwise bags have stitched handles and side panels rather than heat sealed plastic handles like those previously excluded from heading 4202, iv) the description and marketing provided by Earthwise of this “Green Bag” imply that its intended use will extend beyond single or limited reuse, and v) these bags are made of a washable non-woven polypropylene material which can be reused after washing.
While the issue of prolonged use implies the capacity for extended repetitive use, nowhere in our rulings have we said that such use infers long term or permanent use. Although, the Earthwise bag is not as sturdy as its canvas counter-part (Exhibit E) we do not agree that the non-woven polypropylene bag is capable only of limited reuse. Nor do we agree that the instant bags are adequately similar to the bags which have been routinely excluded from heading 4202, HTSUS, as not being designed for prolonged use. We are of the opinion that the non-woven polypropylene material is of a strength sufficient to resist easily encountered rips and tears. Earthwise markets the item as a durable, washable and reusable alternative to single-use plastic bags. The issue of whether the bags are sold empty at retail or given away for promotional purposes is not dispositive. However, the fact that Earthwise bags can be used once and washed is significant in determining its capacity for prolonged use. In sum, an item reusable once washed, of durable construction, made of non-woven polypropylene material with a bag-life of several months is clearly designed for prolonged use.
HOLDING:
By application of GRI 1, the (grocery and bottle) shopping bags “Exhibit A” and “Exhibit B” respectively, are classified in heading 4202, HTSUS. Specifically, the (grocery) shopping bag, “Exhibit A,” is classified in subheading 4202.92.3031, HTSUS, which covers: “… shopping bags … of textile materials, …: Other: With outer surface of sheeting of plastic or textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other, Other: Of man-made fibers: Other”. The (bottle) shopping bag, “Exhibit B,” is classified in subheading 4202.92.9026, HTSUS, which covers: “…similar containers;… beverage bags, … shopping bags … of textile materials,…: Other: With outer surface of sheeting of plastic or textile materials: Other: Other, With outer surface of textile materials: Other: Of man-made fibers.” The 2006 and 2007 column one, general rate of duty for both provisions was 17.6 percent ad valorem. The 2008 column one, general rate of duty for both provisions is 17.6 percent ad valorem.
You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date Regulations and Rulings of the Office of International Trade will take steps to make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division