HQ 959679

May 8, 1997

CLA-2 RR:TC:FC 959679 ALS

CATEGORY: Classification

TARIFF NO.: 4202.92.4500

Port Director of Customs

U.S. Customs Service

423 Canal Street, Room 200

Protest Unit

New Orleans, LA 70130

RE: Application for Further Review of Protest 2002-96-100009,

dated December 29, 1995, Concerning A Plastic

Drawstring Bag

Dear Port Director:

This ruling is in reference to the protest that was filed

against your decision of October 13, 1995, regarding an entry for

a plastic drawstring bag.

FACTS:

The article under consideration is a drawstring tote bag,

item 1541. It is wholly manufactured of a clear polyvinyl

chloride (PVC) plastic sheeting material and has a braided cord

drawstring closure at the top. The drawstring is passed through

metal or plastic grommets. The bag measures 15 inches high with

a 7.5 inch diameter base and is decorated with items one might

expect to find on any article directed at toddlers, e.g., animal

caricatures, balloons, balls. The base is composed of plastic

covered paperboard and all edges and seams are heat sealed. The

bag is a product of China and is imported empty. Subsequent to

importation the bag is filled with a 27 piece toddler feeding set

consisting of learning to drink cups, food storage and feeding

containers, a plastic fork, a plastic spoon, etc., and then sold

at retail as a unit.

ISSUE:

Is the subject plastic drawstring bag of a type similar to

that used for packaging or to that used for travel, sport, etc.?

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LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff

Schedule of the United States Annotated (HTSUSA) is governed by

the General Rules of Interpretation (GRI\'s) taken in order. GRI

1 provides that the classification is determined first in

accordance with the terms of the headings and any relative

section and chapter notes. If GRI 1 fails to classify the goods

and if the headings and legal notes do not otherwise require, the

remaining GRI\'s are applied, taken in order.

The importer has suggested that the drawstring bag

should be classified in subheading 3923.29.0000, HTSUSA, which

provides for \"Articles for the conveyance or packing of goods, of

plastics;\...of plastics: Sacks and bags, of other plastics.\" The

entry covering the subject bag was liquidated under subheading

4202.92.4500, HTSUSA, the provision for travel, sport and similar

bags, with outer surface of plastic sheeting. We note that the

heading 3923 covers articles which are not designed for prolonged

use. In this regard, it is noted that Note 2(A)(a) to Chapter

42, HTSUSA, specifies that: \"Bags made of sheeting of plastics,

whether or not printed, with handles, not designed for prolonged

use (heading 3923).\" By implication, bags composed of plastic

sheeting which are designed for prolonged use are classifiable in

Heading 4202. Also, note 2(ij) to Chapter 39, HTSUSA, specifies

that more substantial items are classifiable in Chapter 42,

HTSUSA, and not Chapter 39. It provides exemplars of the such

articles.

In this regard, we note, for example, Headquarters Ruling

Letter (HRL) 953077, dated April 26, 1993, in which we excluded

bags composed of plastic sheeting from heading 4202, HTSUSA,

despite the fact they could be re-used \"several\" times. We

reasoned that the bags were similar to plastic or paper shopping

bags which were capable of re-use, but intended for a single use.

However, in this case we are of the opinion that the bags,

decorated as previously noted, have been designed for prolonged

use. We note that these bags are imported empty and that they

are subsequently filled with a 27 piece toddler feeding set and

then sold at retail as a unit. The bag is of a kind sold at

retail on its own merits and is not of a disposable kind normally

used for packing of various feeding utensils, cups, plates or

containers. The contents of the feeding set are for prolonged

use and are similar to items which may be individually purchased

and utilized over a prolonged period. The bag is of a kind

designed to contain many various personal effects such as beach,

pool and gym accessories, toiletries, garments, etc. The bag,

when filled subsequent to importation, provides storage,

protection, organization and a degree of portability for the

articles placed therein. It is similar to PVC travel bags either

sold on their own or with other personal effects, cosmetics or

toiletries. It is not of a disposable kind normally used to

temporarily hold its contents.

In Totes, Inc. v. United States, Slip Op. 94-154, the Court

of International Trade (CIT) noted that if an article exhibits

the characteristics which are common to all the exemplars, it is

properly classified in the same heading as the exemplars. The

CIT held that heading 4202, HTSUSA, did not have a requirement

that an article be for travel although portability is a feature

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which could be utilized for classification on the subheading

level. The Court made no distinction as to quality or duration

for which the article is designed to be used. It noted a PVC

garment bag of the kind designed to be carried over the shoulder

by means of a hanger and either given to purchasers of a garment

upon purchase or sold at retail on their own merits as an example

of an article which is of a kind similar to those of heading

4202, HTSUSA. The instant PVC bag is similar.

Holding:

Bags of plastic sheeting which are designed to be filled

with various items subsequent to importation, to provide for the

storage, protection, organization and portability of those items

and are designed for prolonged use are classifiable in subheading

4202.92.4500, HTSUSA. Articles so classified are subject to a

general rate of duty of 20 percent ad valorem.

Since the classification indicated above is the same as the

liquidation classification, you are instructed to deny the

protest in full.

A copy of this ruling should be attached to the Customs Form

19 and provided to the protestant as part of the notice of action

on the protest.

In accordance with Section 3(A)(1)(b) of Customs Directive

099 3550-065, dated

August 4, 1993, Subject: Revised Protest Directive, this decision

should be provided by your office to the protestant no later than

60 days from the date of this letter. Any reliquidation of the

entry in accordance with this decision must be accomplished prior

to the mailing of the decision. Sixty days from the date of the

decision the Office of Regulations and Rulings will take steps to

make the decision available to Customs personnel via the Customs

Ruling Module in ACS and the public via the Diskette Subscription

Service, Freedom of Information Act and other public access

channels.

Sincerely,

John Durant, Director

Tariff Classification Appeals

Division