HQ 082464: Request for reconsideration of New York Ruling Letter (NYRL) 824436 dated August 19, 1987, concerning the tariff classification of polyethylene bags produced in China.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                   HQ 082464

                                   March 10, 1989

          CLA-2  CO:R:C:G  DFC

          CATEGORY: Classification

          TARIFF NO.: HTSUS 389.62

          Gail T. Cumins, Esq
          Law Offices
          Sharretts, Paley, Carter & Blauvelt, P.C..
          Eighty Broad Street
          New York, N.Y. 10004

          RE: Request for reconsideration of New York Ruling Letter (NYRL)
                824436 dated August 19, 1987, concerning the tariff
                classification of polyethylene bags  produced in China.

          Dear Mrs. Cumins:

              In a  letter dated September 21, 1987, you asked that this
          office review the result reached in NYRL 824436 dated August 19,
          1987, concerning the dutiable status of certain polyethylene bags
          produced in China.

          FACTS:

              The sample bag submitted measures 17 inches by 16 inches by 7
          inches.  It has a flat bottom with two loop handles on either
          side, an unsecured opening, and is claimed to be ornamented by
          two, 3/4" strips of polyethylene, which form the handles of the
          bag and extend from the handles around the bag's bottom.

              In NYRL 824436, dated August 19, 1987, Customs ruled that
          bags represented by the sample were classifiable under the
          provision for luggage, of other textile materials, other, of man-
          made fibers, other, in item 706.4135, Tariff Schedules of the
          United States Annotated (TSUSA), and dutiable at the rate of 20
          percent ad valorem. The applicable textile category number was
          670.

               It is your view that this merchandise is properly
          classifiable under the provision for articles not specially
          provided for, of textile materials, ornamented, other, of man-
          made fibers in item 386.1443, TSUSA, and dutiable at the rate of
          10 percent ad valorem.
















                                        - 2 -

          ISSUE:

              Whether the polyetheylene bags are within the purview of the
          term "luggage" for tariff purposes?

          LAW AND ANALYSIS:

              Schedule 7, Part 1, Subpart D, Headnote 2(a)(i), TSUSA,
          provides that:

                2. "For the purposes of the tariff schedules--
                   (a) the term "luggage" covers --
                      (i) travel goods, such as trunks, hand
                          trunks, lockers, valises, satchels,
                          suitcases, wardrobe cases, overnight
                          bags, pullman bags, gladstone bags,
                          traveling bags, knapsacks, kit bags,
                          haversacks, duffle bags, and like
                          articles designed to contain clothing
                          or other personal effects during travel."

              The cases of Adolco Trading Co. v. United States, 71 Cust.
          Ct. 145, C.D. 4487 (1973); J.E. Mamiye & Sons, Inc. v. United
          States, 85 Cust. Ct. 92, C.D. 4878 (1980); aff'd, 69 C.C.P.A. 17
          (1981), and Legal Determination 82-0122 dated October 4, 1982,
          are relevant to the issue involved here.

              In Adolco, supra, the court held that certain inexpensive
          plastic shopping bags were classifiable as articles, not
          specially provided for in item 774.60, TSUS, rather than as
          luggage of other materials in item 706.60, TSUS.  These shopping
          bags measure 9 inches by 9 inches by 4 inches to 13 inches by 14
          inches by 4 inches or more or less, and had wide, unsecured
          openings, long handles attached by rivets and flat bottoms. They
          resembled paper shopping bags in size, shape and general
          characteristics and were used to carry purchases home from the
          store and also for convenience in carrying other than purchased
          articles.

              The instant bags resemble those ruled upon in Adolco to the
          extent that they resemble paper shopping bags in size, shape, and
          general characteristics.  Further, they are bought and marketed
          as shopping bags.



















                                        - 3 -

              The appellate court in Mamiye, supra, construed "the term
          'shopping bag' to mean a bag primarily used for shopping, that
          is, for carrying purchased articles from the place of purchase to
          the place of use.  The court below found that [5] tote bags of
          the types here in issue, while useful for shopping are primarily
          used as a second handbag for the convenience of carrying
          additional personal articles that would not fit in one handbag.
          The record amply supports the conclusion that the chief use is to
          carry articles already in ones possession, such as books, packed
          lunches, umbrellas or extra shoes."

               In Legal Determination 82-0122, dated October 4, 1982, it
          was stated that "tote bags will be regarded as more than shopping
          bags if they have one or more features in addition to being made
          of textile  materials such as, but not limited to, inside or
          outside flaps, linings, compartments, any type of closure, or
          ornamentation or some other feature imparting a degree or quality
          to the article making it suitable for more than the transport of
          purchases once or only a few times.  For example, a textile bag
          with no such features, and which is of such insubstantial quality
          that its life is clearly temporary, or it cannnot be used without
          lining it with the bags merchandise is otherwise packaged in
          would not be regarded as of the same class of merchandise the
          Mamiye court was concerned with.

               We have concluded that the limitation imposed by Legal
          Determination 82-0122 that for a bag to qualify as a shopping bag
          it must be suitable for the transport of purchases once or only
          for a few times and be of insubstantial quality is a too rigid
          interpretation of Mamiye.  It is our observation that the
          decision in Mamiye rested on the failure of the government to
          show that the bags were primarily or chiefly used for shopping
          rather than on the physical characteristics of the bags.

          HOLDING:

               It is our position that the instant polyethylene bags are
          not luggage for tariff purposes because they are bought and
          marketed as shopping bags.























                                        - 4 -

               We do not agree with your claim that the sample bag is
          ornamented.  It is our observation that the loop handles which
          extend completely around the bag's bottom are primarily
          functional which would preclude their being considered ornamented
          for tariff purposes.  The United States v. Endicott Johnson
          Corporation, 67 CCPA 47, C.A.D. 1242 (1980).

               Polyethylene bags represented by the sample are classifiable
          under the provision for articles not specially provided for, of
          textile materials, not ornamented, of man-made fibers, other,
          other, in item 389.6270, TSUSA, and dutiable at the rate of 9
          percent ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division










































          6cc AD NY Seaport
          1cc John Durant
          1cc Kevin Gorman NY Seaport
          DFCahill gc/3/8/89-rt