fibca bulletin - flexible intermediate bulk container

FIBCA Bulletin - Flexible Intermediate Bulk Container Tariff Classification

The following information is being provided to assist in the proper tariff classification of flexible intermediate bulk containers. The information provided is for reference only. For complete legal product descriptions and enacted/proclaimed tariff rates to be used on Customs Service documents, you must consult the current harmonized tariff schedule (HTS) and any supplements thereto, as well as any applicable Customs regulations and decisions.

To View the Current Harmonized Tariff Schedule (HTS) visit:

http://www.usitc.gov/

To Search Current Customs Rulings Visit:

http://rulings.cbp.gov/

Not sure you have the correct HTS item for your product? Contact the Customs and Border Protection Bureau (http://www.cbp.gov/) with questions about how potential importations should be classified.

Customs Ruling and Date Issued Page Customs Ruling and Date Issued Page NY 244563 August 23, 2013 2-4 NY H84383 August 1, 2001 12 NY L87811 October 3, 2005 5-6 NY G88004 April 9, 2001 13-14 NY L85584 June 20, 2005 7 HQ 963508 December 21, 2000 15-24 NY L83204 March 4, 2005 8 NY E89959 November 26, 1999 25-26 NY I88828 December 5, 2002 9-10 NY E89542 November 16, 1999 27-28 NY H85120 August 29, 2001 11 NY E86226 September 15, 1999 29-30



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NY 244563 August 23, 2013 CLA-2-OT:RR:NC:N3:351 CATEGORY: Classification Jack Garbow President Material Motion, Inc. 203 Rio Circle Decatur, GA 30030 RE: Classification and country of origin determination for FIBCs; 19 CFR 102.21(c)(1); wholly obtained or produced in a single country Dear Mr. Garbow: This is in reply to your letter dated July 29, 2013, requesting a classification and country of origin determination for a flexible intermediate bulk container (FIBC), which will be imported into the United States. FACTS: The subject merchandise consists of an FIBC. It is manufactured in China from fabric of Chinese origin. In a telephone conversation with this office, you stated that the fabric is polypropylene coated for UV protection on the outer surface only. Such a fabric is a textile fabric for tariff purposes. The manufacturing operations for the FIBC in China are as follows: The textile fabric is cut and sewn into the FIBC. The FIBC has a pouring spout at the top and an emptying spout on the bottom, both of which close with attached webbed ties. It has a capacity of 1000 kgs (2200 lbs.). Although it is not in any of the documentation, we assume it weighs more than 1 kg. After the FIBC is imported into the United States, it will be stuffed with a plastic liner of similar dimensions; the plastic liner is made in the U.S. ISSUE: What are the classification and country of origin of the subject merchandise? CLASSIFICATION: The applicable subheading for the textile FIBC that is imported into the United States will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTSUS), which provides for sacks and bags, of a kind used for the packing of goods: of man-made textile materials: flexible intermediate bulk containers, weighing one kilogram or more. The general rate of duty will be 8.4% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

2 The Customs Ruling was Obtained form the Customs Rulings Online Search System (CROSS)

NY 244563 (Continued) COUNTRY OF ORIGIN - LAW AND ANALYSIS: Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. 3592), enacted on December 8, 1994, provided rules of origin for textiles and apparel entered, or withdrawn from warehouse for consumption, on and after July 1, 1996. Section 102.21, Customs Regulations (19 C.F.R. 102.21), published September 5, 1995 in the Federal Register, implements Section 334 (60 FR 46188). Section 334 of the URAA was amended by section 405 of the Trade and Development Act of 2000, enacted on May 18, 2000, and accordingly, section 102.21 was amended (68 Fed. Reg. 8711). Thus, the country of origin of a textile or apparel product shall be determined by the sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21. Paragraph (c)(1) states, “The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced.” As the FIBC was wholly obtained or produced in a single country, that is, China, country of origin is conferred in China. You also ask about the proper country of origin marking for the completed product, that is, the FIBC with the plastic liner that is made in the U.S. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. In this case, your customers are the ultimate purchasers of the FIBCs. An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, if Customs is satisfied that the article will remain in its container until it reaches your facility and if you can tell the country of origin of the FIBC by viewing the container in which it is packaged, the individual FIBCs would be excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d). Accordingly, marking the container in which the FIBCs are imported in lieu of marking the article itself is an acceptable country of origin marking for the imported FIBCs provided the port director is satisfied that the article will remain in the marked container until it reaches your facility. These same rules apply when you repackage the FIBCs after assembling the finished product, as explained below. You state that after you assemble the plastic liner to the textile FIBC, you sell the assembled item. The term “country of origin” is defined in 19 CFR 134.1(b) as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the ‘country of origin’ within the meaning of this part . . . .” For tariff purposes, the courts have held that a substantial transformation occurs if a new and different article emerges having a distinctive name, character or use. Anheuser-Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).


NY 244563 (Continued) In this case, the assembly process does not result in a substantial transformation in the U.S. The assembled FIBC with a plastic liner does not have a distinctive name, character or use different from the unlined imported textile FIBC, and therefore is not a good of the United States for marking purposes. Accordingly, it will be required to have a country of origin marking pursuant to 19 U.S.C. 1304 when sold in the United States. The FIBCs or the containers in which they are repacked must indicate the country of origin of the FIBCs, China, to the ultimate purchaser in the U.S. Whether the FIBC may be marked to include the U.S. origin of the liner is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580 on the propriety of markings indicating that the liner is made in the U.S. HOLDING: The country of origin of the FIBC is China. The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 177.9(b)(1). This section states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR 177.2. A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at (646) 733-3102. Sincerely, Myles B. Harmon Acting Director National Commodity Specialist Division


NY L87811 October 3, 2005 CLA-2-63:RR:NC:N3:351 L87811 CATEGORY: Classification TARIFF NO.: 6305.32.0010, 6305.32.0020, 6305.33.0010, 6305.33.0020 Thomas A. Kane Euro-American Merchandise Co. Inc. New Castle Corporate Commons 42 Read’s Way New Castle, DE 19720-1649 RE: The tariff classification of woven polypropylene bulk bags from China Dear Mr. Kane: In your letter dated September 21, 2005, you requested a tariff classification ruling. You submitted pictures of flexible intermediate bulk containers (FIBC’s) and other bulk bags used for packaging grain, chemicals, cement, pet foods and other items, and for waste removal, according to your letter. You included two pieces of the fabrics that will be used. They are woven of polypropylene strips, which measure approximately 2-3mm. The strips meet the dimensional requirements for man-made fiber strips contained in Section XI, Legal Note 1(g) of the Harmonized Tariff Schedule of the United States (HTS). For this reason, the sacks and bags are not classifiable under subheading 3923.21.00, HTS, which covers articles for the conveyance or packing of goods, of plastic, sacks and bags, of polymers and ethylene, as you suggest. The FIBC’s are shown being hoisted by a forklift using loops at the top. It is not clear whether the bag is opened or sealed. The bags appear to be at least six feet tall and three feet square.

Depending on the weight of the FIBC’s, the applicable subheading will be either 6305.32.0010 or 6305.32.0020, HTS, which provides for sacks and bags of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers. If the bags weigh one kilogram or more, 6305.32.0010, HTS, applies. If the bags weigh less than one kilogram, 6305.32.0020, HTS, applies. The rate of duty will be 8.4 percent ad valorem for both subheadings. The other bags as shown appear to be standard pet-food type bags. In addition, there is a picture of bags in large rolls; your letter mentions “bags circularly woven in rolls for packaging of the above, and used in automatic bagging equipment.” We take this to mean the pet-food type bag. Depending on the weight of these bags, the applicable subheading will be either 6305.33.0010 or 6305.33.0020, HTS, 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. If the bags weigh one kilogram or more, 6305.33.0010, applies. If the bags weigh less than one kilogram, 6305.33.0020, applies. The rate of duty will be 8.4 percent ad valorem. The bags classified in HTS 6305.32 and HTS 6305.33 fall within textile category designation 669. Quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information as to whether quota and visa requirements apply to this merchandise, we suggest that you check, close to the


NY L87811 (Continued) time of shipment, the “Textile Status Report for Absolute Quotas” available at our web site at www.cbp.gov. In addition, you will find current information on textile import quotas, textile safeguard actions and related issues at the web site of the Office of Textiles and Apparel, at www.otexa.ita.doc.gov. You also ask if there is a classification for “Fabric for Civil Engineering.” While there is no such specific HTS provision, you may submit more information on the fabric as well as a sample and we will issue a classification ruling on it. You also mention “fabric made of woven of polypropylene, use in construction work, such as to cover bridges during sandblasting and painting.” Again, we require a sample and a complete description of the fabric in order to issue a ruling. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 646-733-3102. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


NY L85584 June 20, 2005 CLA-2-63:RR:NC:N3:351 L85584 CATEGORY: Classification TARIFF NO.: 6305.32.0010 Arthur F. Lentz LML Customhouse Broker Inc. 2252 A Landmeier Road Elk Grove Village, IL 60007 RE: The tariff classification of a Flexible Intermediate Bulk Container from Turkey or China Dear Mr. Lentz: In your letter dated June 7, 2005, you requested a tariff classification ruling on behalf of Sunjut Pacific LLC, of Chicago, Illinois. You submitted a sample of a Flexible Intermediate Bulk Container. It is woven of strips of man-made fibers. The strips do not exceed 5mm in width and thus meet the dimensional requirements of man-made fiber textile strips contained in Section XI, Legal Note 1(g) of the Harmonized Tariff Schedule of the United States (HTS). The FIBC is 35” x 35” x 52”. At the top there is a cover that ties shut and at the bottom there is a pouring spout that ties shut. There is a lifting strap in each top corner. It is listed as single-use on the label. You suggest that the proper classification is in subheading 3923.29.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for articles for the conveyance or packing of goods, of plastics…sacks and bags…of other plastics. However, as stated above, it is made of a textile fabric; the fabric is not coated with plastic coating that is visible to the naked eye other than by change of color. This type of construction is classified as a textile material for tariff purposes. The applicable subheading for the Flexible Intermediate Bulk Container will be 6305.32.0010, HTS, which provides for sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers…weighing one kg or more. The rate of duty will be 8.4 percent ad valorem. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 646-733-3102. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


NY L83204 March 4, 2005 CLA-2-63:RR:NC:N3:351 L83204 CATEGORY: Classification TARIFF NO.: 6305.32.0010, 6305.32.0020 Katherine Elizabeth McMahon Compliance Manager The Camelot Company 9865 West Leland Avenue Schiller Park, Il 60176 RE: The tariff classification of flexible intermediate bulk containers from Turkey and India Dear Ms. McMahon: In your letter dated March 2, 2005, you requested a tariff classification ruling on behalf of Asian Resources of Buffalo Grove, Illinois. The items in question are flexible intermediate bulk containers (FIBC’s) that are made of fabric woven of man-made fiber strip. The strips meet the dimensional requirements of man-made fiber textile strips contained in Section XI, Legal Note 1(g) of the Harmonized Tariff Schedule of the United States (HTS). The sample of the fabric that you have sent is coated on only one side; this type of construction is classified as a textile material for tariff purposes. Our ruling will only consider this fabric. The dimensions of the FIBC’s are not given, other than a capacity of 2000 kg. They have lifting straps in the corners and filling or discharging spouts are available. The applicable subheading for the bags, if they weigh one kilogram or more, will be 6305.32.0010, HTS, which provides for sacks and bags, of a kind used for packing goods, of man-made textile materials, flexible bulk containers, weighing one kilogram or more. The rate of duty will be 8.4 percent ad valorem. The applicable subheading for the flexible intermediate bulk container if the bag weighs less than one kilogram will be 6305.32.0020, HTS, which provides for sacks and bags, of a kind used for packing of goods, of man-made textile materials, flexible intermediate bulk containers, other. The duty rate will be 8.4 percent ad valorem. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 646-733-3102. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


NY I88828 December 5, 2002 CLA-2-63:RR:NC:TA:351 I88828 CATEGORY: Classification TARIFF NO.: 6305.33.0010; 6305.33.0020; 6305.32.0010; 6305.32.0020; 5407.20.0000 Mr. Stanley Vick Kuehne & Nagel, Inc. 235 Southfield Parkway Forest Park, GA 30297 RE: The tariff classification of bags, flexible intermediate bulk containers, and woven fabrics from Taiwan. Dear Mr. Vick: In your letter dated November 25, 2002, on behalf of New South International, you requested a classification ruling. The submitted swatch and descriptive literature are representative samples of the material used for the manufacture of woven bags, flexible intermediate bulk containers, and woven fabrics. The swatch is made of plain woven polypropylene strips. The strips meet the dimensional requirements of man-made fiber strips contained in Section XI, Legal Note 1(g) of the Harmonized Tariff Schedule of the United States (HTS). The smaller bags and the flexible intermediate bulk containers are used for packaging of agricultural products, chemical, sugar, coffee and animal food products. They measure approximately 4’ x 8’ x 16’, 4’ x 6’ x 16’, and 4’ x 4’ x 16’. Depending on the weight of the smaller bags, the applicable subheading for the bags will be either 6305.33.0010 or 6305.33.0020, HTS, 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. If the bags weigh one kilogram or more, 6305.33.0010 applies. If the bags weigh less than one kilogram, 6305.33.0020 applies. The rate of duty will be 8.6 percent ad valorem for both subheadings. The rate of duty for the year 2003 will be 8.5 percent ad valorem for both subheadings. Depending on the weight of the flexible intermediate bulk containers, the applicable subheading for the containers will be either 6305.32.0010 or 6305.32.0020, HTS, which provides for sacks and bags of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers If the containers weigh one kilogram or more, 6305.32.0010 applies. If the containers weigh less than one kilogram, 6305.32.0020 applies. The rate of duty will be 8.6 percent ad valorem for both subheadings. The rate of duty for the year 2003 will be 8.5 percent ad valorem for both subheadings. The woven fabric contains 10 strips per inch in the warp and 10 strips per inch in the filling. Weighing approximately 125g/m2, the fabric will be imported on rolls of a width of 285 centimeters. The applicable subheading for the woven fabric will be 5407.20.0000, HTS, which provides for woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404, woven fabrics obtained from strip or the like. The duty rate will be 3.4 percent ad valorem. The duty rate for the year of 2003 will be 1.7 percent ad valorem.


NY I88828 (Continued) The woven fabric falls within textile category designation 620. Based upon international textile trade agreements products of Taiwan are subject to quota and the requirement of a visa. The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 646-733-3102. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


NY H85120 August 29, 2001 CLA-2-63:RR:NC:N3:351 H85120 CATEGORY: Classification TARIFF NO.: 6305.32.0010 Mr. Ryan Campbell Cometals 222 Bridge Plaza South Fort Lee, NJ 07024 RE: The tariff classification of flexible intermediate bulk containers from Turkey. Dear Mr. Campbell: In your letter undated received in our office August 16, 2001, you requested a ruling on tariff classification. You state that you will be importing a product you call supersack bags, which you describe as polyethylene flexible intermediate bulk containers (FIBC) weighing over one kg per bag. The applicable subheading for this product will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers...weighing one kg or more. The general rate of duty will be 8.7 percent ad valorem. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R.177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 212-637-7086. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


NY H84383 August 1, 2001 CLA-2-63:RR:NC:N3:351 H84383 CATEGORY: Classification TARIFF NO.: 6305.32.0010 Ms. Paula Girod E.R. Hawthorne & Co., Inc. 9370 Wallisville Road Houston, TX 77013 RE: The tariff classification of flexible intemediate bulk containers (FIBC) from Indonesia. Dear Ms. Girod: In your letter dated July 23, 2001, you requested a ruling on behalf of Corrpack Bulk Packaging Systems LLC, of Monroe, LA, on tariff classification. You submitted a sample of an FIBC. You describe it as being made of non-coated woven polypropylene on the outside and polyethylene on the inside. It is 36” x 36” x 72” and designed to hold 2000 pounds of PVC resin. While the sample is made in Indonesia, you state that the same bag might be imported from China, India, Turkey, and Hungary. The applicable subheading for this product will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for “Sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers, weighing one kg or more.” The general rate of duty will be 8.7 percent ad valorem. This product falls within textile category designation 669. Based upon international textile trade agreements products of Indonesia, China, and India are currently subject to quota and the requirement of a visa. The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R.177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 212-637-7086. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


NY G88004 April 9, 2001 CLA-2-63:RR:NC:N3:351 G88004 CATEGORY: Classification TARIFF NO.: 6305.32.0010 Mr. Ryan Campbell Cometals 222 Bridge Plaza South Fort Lee, NJ 07024 RE: The tariff classification of polypropylene flexible intermediate bulk containers (FIBC) from China. Dear Mr. Campbell: In your undated letter received in our office on March 9, 2001, you requested a ruling on tariff classification. You have included with your letter a photograph and a schematic drawing of the bags, which you state will be filled after importation with U.S.-produced petroleum needle coke or other commodities, and that they hold approximately one metric ton per bag. There are lift loops at each top corner. We shall assume for the purposes of this response that the bags, when empty, weigh one kilogram or more. The applicable subheading for this product will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for sacks and bags, of a kind used for the packing of goods: Of man-made textile materials: Flexible intermediate bulk containers...weighing one kg or more. The general rate of duty will be 8.7 percent ad valorem. This product falls within textile category designation 669. Based upon international textile trade agreements products of China are currently subject to quota and the requirement of a visa. The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment. In your letter you ask about the applicability of the drawback provisions. For this information you must contact the Customs port through which you will be entering the merchandise.


NY G88004 (Continued) This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R.177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Mitchel Bayer at 212-637-7086. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division


HQ 963508 December 21, 2000 CLA-2 RR:CR:TE 963508 jsj CATEGORY: Classification TARIFF NO.: 6305.32.0010 Mr. Richard H. Abbey Ablondi, Foster, Sobin & Davidow, P.C. 1150 Eighteenth Street, N.W. Ninth Floor Washington, D.C. 20036-4129 Re: Request for Reconsideration of HQ 961938; Flexible Intermediate Bulk Container; Polypropylene woven bag; Subheading 6305.32.0010; General Rule of Interpretation 5 (b). Dear Mr. Abbey: The purpose of this correspondence is to respond to your request of July 20, 1999. The correspondence in issue requested, on the behalf of your client Toyota Tsusho America, Inc. (Toyota), reconsideration of Headquarters Ruling Letter 961938. This reconsideration is being issued subsequent to the following: (1) A review of your submissions dated July 20, 1999, and August 31, 2000; (2) A review of TEN-E Packing Services, Inc., Test Report No.: 00-4032; and (3) A conference conducted at the Customs Service Headquarters on November 9, 2000, at which you, Ms. Sarah Nappi of your office and Mr. George Pierce, General Counsel of Toyota, were present. The Customs Service afforded Toyota thirty days from the date of the November 9, 2000, conference to provide an additional submission. No submission was received as of the date of this decision. This reconsideration is also being issued subsequent to a review of the entire HQ 961938 file. This file includes, among other documents, two submissions filed on the behalf of Toyota and the initial request for Internal Advice. It is additionally noted that a conference was conducted at the Customs Service Headquarters on January 25, 1999, at which time Toyota, represented by you and Mr. Pierce, was afforded the opportunity to address the issues raised in the request for Internal Advice prior to the issuance of HQ 961938. FACTS

The article in issue, known as a “Flexible Intermediate Bulk Container”1 or FIBC, is a polypropylene woven bag or container. The container, in general terms, is circular, composed of a woven polypropylene fabric .4 mm thick with sewn side seams. It has an interior lining that is made of polypropylene sheeting .4mm thick, a top fill spout, a bottom discharge spout, two (2) perpendicular lifting straps, four (4) side reinforcements and a document pouch.

1 See generally THE WILEY ENCYCLOPEDIA OF PACKAGING TECHNOLOGY 448-49 (Aaron L. Brody & Kenneth S. Marsh eds., 2nd ed. 1997) (discussing flexible intermediate bulk containers).


HQ 963508 (Continued)

The Test Report of TEN-E Packing Services offers a more complete description of the container. The container according to the TEN-E report is composed entirely of woven polypropylene. It has a height of twenty-four and one-half (24 ½) inches and a diameter of thirty-two and one-half (32 ½) inches. The tare weight is 1393 grams.

The container has two lifting straps composed of polypropylene webbing. The lifting

straps are three (3) inches wide and have a loop length of 101 ½ inches. Four (4) inch aspects of a five and three-fourth (5 ¾) inch overlap of the loops are sewn to the bottom of the container. The lifting straps run up the sides, cross the top and then run down the opposite side. The straps cross over the top of the container at ninety-degree angles to one another. The straps are sewn to the side edges of the container near the top with the stitching attaching eight (8) inches of the strap to the container. The stitching method is zigzag.

The bottom of the lifting straps are sewn over to form loops. A five-sixteenth (5/16) of an

inch thick polyvinyl chloride rope is threaded through the loops and tied. The straps are reinforced to the sides of the container at four locations along the top

edge. The reinforcements are four pieces of woven polypropylene material, the same as that of which the container is composed. These reinforcements measure nine and five-eighths (9 5/8) inches in height and six (6) inches in width. The reinforcements are sewn on to the container with the lifting straps crossing on top. The reinforcing material is then located between the strap and the container. Four six (6) inch by three (3) inch pieces of polypropylene webbing, the same material as that of which the straps are composed, are sewn across the top of the lifting straps at the top of each of the woven polypropylene reinforcements. The stitching used to attach the reinforcements is a zigzag stitch.

The containers in issue are used to transport sand. They are designed to contain

500kgs or 1102.3 pounds. The manufacture is Shibata Industrial Co., LTD. of Japan. ISSUE

Is the flexible intermediate bulk container in issue a “[s]ack or bag, of a kind used for the packing of goods” that is “clearly suitable for repetitive use” pursuant to General Rule of Interpretation 5 (b) ? LAW AND ANALYSIS

Toyota Tsusho America, Inc. made a request for Internal Advice on April 24, 1998. The decision of the Customs Service on that request is set forth in HQ 961938, dated June 11, 1999. The legal analysis and conclusions announced in HQ 961938 are correct.

The Customs Service, in an effort to fulfill its mission to all importers, will not reiterate the

facts, analysis or conclusions of HQ 9619382. HQ 961938 is incorporated into this ruling by reference.

2 Headquarters Ruling Letter 961938 is available on the Customs Service Infobase, www.customs.gov, search “Importing & Exporting” then “Rulings and Regulations.”



This reconsideration will, therefore, only address those issues raised by Toyota in its appeal. The primary issue is whether the flexible intermediate bulk container in issue is a

“[s]ack or bag, of a kind used for the packing of goods” that is “clearly suitable for repetitive use” pursuant to General Rule of Interpretation 5 (b). Subheading 6305.32.0010, Harmonized Tariff Schedule of the United States; General Rule of Interpretation 5 (b). Subsidiary issues raised by Toyota include the accuracy of cost comparison figures stated by the Customs Service in HQ 961938 and the party responsible for the decision to have the FIBC tested for durability.

The Customs Service, in advance of addressing the issues raised in this appeal,

believes that it is essential to understand the classification of the merchandise and the General Rule of Interpretation that is the subject of application. Headquarters Ruling Letter 961938 classified the polypropylene woven bag in subheading 6305.32.0010, Harmonized Tariff Schedule of the United States (HTSUS). Subheading 6305.32.0010 provides: 6305 Sacks and bags, of a kind used for the packing of goods:

6305.32.00 Of man-made textile materials: Flexible intermediate bulk containers 6305.32.0010 Weighting one kg or more. (Emphasis added).

It is the conclusions of the Customs Service that the polypropylene woven bag imported by Toyota is correctly classified in subheading 6305.32.0010, HTSUS.

It is specifically noted, for reasons that will be discussed in greater detail in a subsequent

aspect of this ruling letter, that heading 6305 addresses not merely sacks and bags used for the packing of goods, but rather, sacks and bags “of a kind” used for the packing of goods. Heading 6305, HTSUS. The inclusion by Congress of the phrase “of a kind” in heading 6305 focuses the attention of the Customs Service, not simply on the particular sack or bag of importance to Toyota, but rather on all sacks and bags which are of the kind used for the packing of goods.

The Customs Service classification mandate from Congress is to classify sacks or bags

used for packing by specific importers by referencing all sacks and bags that are of the kind of sacks and bags used by all importers. It is not the particular sack or bag utilized by an individual importer that is relevant but, rather, the universe of all sacks or bags that are of the kind utilized by the importing community for the packing of goods.

The classification of imported merchandise pursuant to the Harmonized Tariff Schedule of the United States is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1, HTSUS. GRI 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation in their sequential order. See General Rule of Interpretation 1, HTSUS.


HQ 963508 (Continued) General Rules of Interpretation 1 through 4 do not address the issue raised in this

appeal. The Customs Service must, therefore, examine General Rule of Interpretation 5. General Rule of Interpretation 5 provides that “[i]n addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein.” General Rule of Interpretation 5, HTSUS. General Rule of Interpretation 5 (b), of particular importance to the resolution of this classification matter, provides in pertinent part: Packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use. (Emphasis added). The essence of GRI 5 (b) is that packing materials and packing containers are to be classified with the goods they transport, except when the materials or containers are clearly suitable for repetitive use. Packing materials and containers that are clearly suitable of repetitive use are classified separately from the goods they transport. Toyota Tsusho America suggests that the FIBC it uses to import resin coated sand is not clearly suitable for repetitive use pursuant to GRI 5 (b). Toyota initially maintained that the FIBC was not physically suitable for repetitive use and subsequently suggested that the container is not suitable for repetitive use in a commercial sense. Toyota references the Customs Service to the Court of Appeals for the Federal Circuit decision in Holly Stores, Inc. v. United States, 697 F. 2d 1387 (Fed. Cir. 1982) as authority for its positions.

The Court of Appeals in Holly Stores interpreted General Headnote 6 (b) (ii) of the Tariff Schedule of the United States (TSUS), the predecessor of the HTSUS. General Headnote 6 (b) (ii) of the TSUS provided, in part, that “shipping or transportation containers, if designed for, or capable of, reuse, are subject to treatment as imported articles separate and distinct from their contents.” (Emphasis added) General Headnote 6(b)(ii), Tariff Schedule of the United States. The Court in Holly Stores held that “reuse”as used in General Headnote 6 (b) (ii) should be interpreted to mean “practical, commercial reuse, not incidental reuse.” Holly Stores supra, at 1388.

The Customs Service in the instant appeal has been called on to apply GRI 5

(b) to the FIBC used to import resin coated sand by Toyota. Although the language employed in General Headnote 6 (b) (ii), TSUS, is not identical to the language of GRI 5 (b), HTSUS, the Customs Service has previously concluded that “reuse” as used in General Headnote 6 (b) (ii) and “repetitive use” as used in GRI 5 (b) both mean, as announced in Holly Stores, practical, commercial reuse and not incidental reuse. See HQ 084068, HQ 961973, HQ 962709.

It is initially noted that the polypropylene woven bags imported by Toyota are of

substantial construction. The containers, according to TEN-E Packing Services, the testing laboratory selected by Toyota, meet the British Standards Institution 6382 Performance Certification for multi-trip flexible intermediate bulk containers with multi-lift capabilities.3 Although the FIBC in issue meets the British multi-trip certification standard, it is not the conclusion reached by the testing service that is most significant to the Customs Service, but rather the test results themselves.

3 No domestic performance standards currently exist for flexible intermediate bulk containers. 18

The Customs Ruling was Obtained form the Customs Rulings Online Search System (CROSS)


The Customs Service, when necessity dictates, utilizes the services of its laboratory, as well as, the services of outside, independent laboratories for the testing of merchandise submitted for classification. See generally 19 C.F.R. 151 et seq. Laboratory test results provide the Customs Service with facts on which reasoned, considered binding rulings may rest. Referencing Customs Service laboratory test results or the test results of an outside, independent laboratory as support for a classification decision should not be construed as abdicating the responsibility of the Office of Regulations and Rulings to classify merchandise. Binding classification decisions involve the inter-relationship of law and facts. Test results alone, whether the product of a Customs Service laboratory or of an outside laboratory, do not dictate the classification of merchandise.

TEN-E Packing performed four tests on the flexible intermediate bulk container

in issue. The tests included: (1) The Top Lift Test; (2) The Cycle Top Lift Test; (3) The Stack Test; and (4) The Drop Test. The polypropylene woven bag tested suffered no leakage of contents nor did any of the lifting straps sustain damage that disabled the container from supporting its load.

The Top Lift Test was designed to determine whether the container could lift a

specific weight of material without failing. The FIBC tested was filled with material weighting 3000 Kg or 6,613.8 pounds. It is noted that the weight of material was deemed to be six times the safe working load of the bag. The safe working load of the bag being 500 Kg or 1102.3 pounds. The container, once evenly filled, was lifted. The FIBC sustained no deformation nor did it lose any content.

The Cycle Top Lift Test was designed to address the capability of the container

to be filled and repeatedly lifted. The bag was initially filled with material weighting 2000 Kg or 4,409.2 pounds and then lifted seventy times at a rate of not more than thirty seconds per cycle. The container, on the seventy first cycle was filled with material weighting a total of 3000 Kg and lifted one additional time. The container maintained its integrity, losing no content. The lifting straps remained in good working order.

The Stack Test was designed to assess the ability of the container to be loaded

one on top of another. The FIBC tested was filled with 2000 Kg or 4,409.2 pounds of material. Pressure was exerted on the top of the container designed to simulate stacking. The test lasted five minutes. A maximum deflection of .18 inches was recorded. The container sustained no loss of content.

The final test addressed in the TEN-E Packing report was the Drop Test. The

test container was filled with material, but the report does not disclose the weight of the material. Subsequent to being filled, the bag was lifted approximately 500 mm or 19.7 inches. The container, through the use of a quick release mechanism, was then dropped. The container suffered no deformation and there was no leakage of content.

It is the conclusion of the Customs Service, subsequent to a visual examination

of a sample polypropylene woven bag and a review of the TEN-E Packing test report that the FIBC in issue is physically suitable for repetitive use. The container is composed of durable material and is manufactured in a fashion that complements the strength of the material.



Having concluded that the polypropylene woven bag imported by Toyota is physically capable of repetitive use, the issue which remains to be addressed is Toyota’s second suggestion that the container is not suitable for “practical, commercial reuse.” Importer’s Submission, Aug. 13, 2000, at 2. The Customs Service, subsequent to an exhaustive review of the law, concludes that the container imported by Toyota is of a kind that is “clearly suitable for repetitive use” not only in a physical sense, but also in practical, commercial terms.

The General Counsel of Toyota stated during the conference conducted at the

Customs Service Headquarters on November 9, 2000, that Toyota imports approximately eighty to one hundred of the polypropylene woven containers annually. He further indicated that Toyota was previously using a more durable rubberized bag prior to using the polypropylene woven bag. Mr. Pierce stated that his company changed to the polypropylene container because a cost analysis study conducted by Toyota indicated that it was more cost effective for Toyota to dispose of the polypropylene bags than to reuse the rubberized bags. Customs was additionally advised that Toyota’s customer discards the bags subsequent to emptying the contents.

If the issue in this appeal was whether it is practically, commercially reasonable

for Toyota to reuse the polypropylene woven bags in its business operations, the Customs Service, based on Toyota’s statements might agree with the importer. The issue is not, however, whether it is cost effective for Toyota to reuse the containers. The issue is whether the polypropylene woven bags are “of a kind” of sacks or bags that are clearly suitable for repetitive use. The issue phrased in a fashion that relates directly to Toyota is whether the polypropylene woven bag used by Toyota is of a kind of sack or bag that is practically, commercially reusable by importers that utilize a packing sack or bag that is of the kind used by Toyota. It is the conclusion of the Customs Service that the polypropylene woven bag imported by Toyota is a sack or bag used for packing goods, the kind of which possesses appreciable commercial value subsequent to its initial use.

Heading 6305 addresses the classification of sacks and bags “of a kind” used

for the packing of goods. Heading 6305, HTSUS. Classifying the container in issue solely with reference to the circumstances of Toyota would fail to properly interpret the tariff schedule as intended by Congress when the Harmonized Tariff Schedule of the United States was enacted into law.

The position advocated by Toyota is one which requests that the Customs

Service only examine its unique circumstances. It is the understanding of the Customs Service, subsequent to studying Toyota’s multiple submissions and having extended the opportunity to meet with representatives of and counsel for Toyota on two occasions, that it is not cost effective for Toyota to reuse the containers. Toyota Tsusho America’s position fails, however, to properly interpret the tariff schedule, particularly heading 6305. The position suggested by Toyota does not take into consideration the circumstances of other importers that use polypropylene woven bags that are of the kind used by Toyota.


HQ 963508 (Continued) A determination of whether the polypropylene woven bag in issue is “suitable

for repetitive use” requires an examination of polypropylene woven bags that are of a kind utilized by the importing community. Heading 6305 does not simply classify sacks and bags used for the packing of goods, rather, it classifies sacks and bags that are “of a kind” used for the packing of goods. The phrase “of a kind” appears in 176 places throughout the legal notes, headings and subheading of the tariff schedule. Proper interpretation of heading 6305, particularly as it relates to the practical, commercial suitability for repetitive use of the container in issue requires an examination of whether the container is of a kind of containers that generally possess appreciable commercial value subsequent to their initial use.

A review of HQ 961938 that is under reconsideration in this ruling letter reveals

an extensive discussion of the numerous rulings addressing polypropylene woven bags that are of the kind used by Toyota. The conclusion reached in HQ 961938 and in this reconsideration is that the polypropylene woven bag in issue is of a kind of containers that are “clearly suitable for repetitive use.” The container is of a kind that is practically, commercially suitable for repetitive use. The polypropylene woven bag imported by Toyota is of a kind that importers, which use the bag, find to be commercially feasible to reuse.

The Customs Service acknowledges that the manufacturer of the

polypropylene bag only guarantees it for a single use and that Toyota produced evidence that an importation of sand in July of 1999, arrived with two FIBC’s having sustained punctures during transit. This information, while warranting consideration, is not deemed by Customs to be determinative of the container’s suitability for repetitive use.

The decision of the manufacturer to extend a warranty and the nature of that warranty are factors weighed by Customs. Suitability for repetitive use, as interpreted in accordance with GRI 5 (b) is, however, a matter for the Customs Service to determine. The factors that resulted in the manufacturer’s warranty decision may or may not be those that Customs concludes determinative of suitability for repetitive use. It is the decision of the Customs Service, based on the test results and the discussion of prior rulings in HQ 961938 that addressed polypropylene bags of the kind under consideration in this reconsideration, that the manufacturer’s warranty does not offer a sufficient basis for concluding that the container in issue is not clearly suitable for repetitive use.

Evidence of damage sustained by polypropylene bags during transit is also

relevant to the ultimate decision in this matter. The evidence in this instance, however, is not persuasive. The facts presented by Toyota indicate that two polypropylene woven bags suffered punctures during shipping.4 The submissions of Toyota and the accompanying photographs also indicate that the punctures were the result of exposure to bolts or other sharp edges in the door of an ocean container. It is the conclusion of Customs that the damage sustained by the bags could have been avoided if the bags had not been loaded close to the ocean container door. The damage was not the result of weaknesses in the polypropylene woven bags that would cause the Customs Service to conclude that they are of a kind that is not suitable for repetitive use.

4 It is specifically noted that Toyota’s submission of August 31, 2000, states that “several” FIBC’s arrived in damaged condition. The submission of July 20, 1999, stated a precise number. The July 20, 1999, correspondence indicated that only two containers sustained punctures.


HQ 963508 (Continued) A review of the photographs exhibiting the punctured bags and the statements

indicating how the bags were damaged not only fails to convince Customs that the polypropylene woven bags are not suitable for repetitive use, but serves to confirm that the containers are clearly suitable for repetitive use. The damage alleged by the importer as the basis for questioning the suitability for repetitive use appears to be damage sustained as the result of the failure to use reasonable care during loading. The fact that Toyota could only bring forth information indicating that two containers of the numerous it uses to import sand arrived with punctures and offered no statement nor documentation establishing a failure rate of polypropylene bags that are reused, supports the decision of the Customs Service.

The photographs additionally show other polypropylene bags in the container

that appear to have satisfactorily endured the rigors of ocean transit. The condition of the undamaged bags in the photographs substantiating the test results obtained by TEN-E Packing.

Counsel representing Toyota directed the attention of Customs to HQ 961973,

suggesting that the referenced ruling supported the position of the importer. The Customs Service reviewed HQ 961973 and concludes that it is distinguishable from the instant reconsideration.

Headquarters Ruling Letter 961973 responded to the ruling request of an

importer of plastic garment hangers. See HQ 961973. The conclusion of the Customs Service in HQ 961973 was that the particular hangers in issue, which were part of a hanger recovery or recycling program and had an estimated useful life of four to six cycles, were “clearly suitable for repetitive use” pursuant to GRI 5(b). The ruling emphasized the fact that the Court in Holly Stores viewed the articles under consideration from the perspective of whether the particular importer’s reuse of the hangers was sufficient to warrant the hangers being deemed separate and distinct articles of commerce.

The distinction of significance between the instant reconsideration and HQ

961973 is the specific tariff schedule descriptions of the merchandise. The hangers classified in HQ 961973 were merchandise classified in heading 3926. Heading 3926 provides for “[o]ther articles of plastic and articles of other materials of heading 3901 to 3914.” Heading 3926, HTSUS. The polypropylene woven bags of the instant reconsideration are classified in heading 6305. Heading 6305 provides for the classification of “[s]acks and bags of a kind used for the packing of goods.” (Emphasis added) Heading 6305, HTSUS supra.

It was appropriate for Customs in HQ 961973 to examine the suitability for

repetitive use of the specific merchandise in issue with reference to the specific importer. Heading 3926 classifies the merchandise described without reference to other merchandise of the same kind. Heading 6305, on the other hand, requires that Customs take into consideration all sacks and bags that are “of the kind” used for the packing of goods. Since heading 6305 is a heading that classifies merchandise that is of the same class or kind, it is not the unique situation of a particular importer that receives the attention of Customs, but rather, it is all of the merchandise of the same kind that Customs must review prior to issuing a ruling.


HQ 963508 (Continued) Even though the specific polypropylene bags used by Toyota, like the hangers

in Holly Stores, may never enter the stream of commerce, the majority of the polypropylene woven bags that are of the kind imported by Toyota are separate and distinct articles of commerce. A distinction between purely internal use and commercial use is relevant when the issue only involves an examination of specific merchandise imported by a specific importer. When the question presented involves the suitability for repetitive use of merchandise that is of a kind, the resolution of that matter involves an examination of all of the merchandise of that kind.

The subsidiary issues raised by Toyota in this reconsideration include the accuracy of

cost comparison figures referenced by the Customs Service in HQ 961938 and the party responsible for the decision to have the container’s physical properties tested. Although the resolution of these issues does not have direct bearing on whether the container used by Toyota is clearly suitable for repetitive use, the Customs Service concluded that it should address Toyota’s contentions.

The Customs Service in HQ 961938 stated that the rubber bags previously used by

Toyota cost $153.33 and that the polypropylene bags cost $20.83. Counsel representing Toyota, in correspondence dated July 20, 1999, suggested that there were “minor inaccuracies” in the figures referenced by Customs. Correspondence of Counsel, July 20, 1999, at 2. Counsel further stated that the correct figures were $250.00 for the rubber bag and $16.67 for the polypropylene bag. Correspondence of Counsel, July 20, 1999, at 2.

The Customs Service, vigilant of accuracy in the ruling letters issued by this Office,

reviewed the Internal Advice file material, as well as the file material accumulated in the preparation of this reconsideration. The cost comparison figures referenced in HQ 961938 were obtained directly from a submission of counsel representing Toyota. See Correspondence of Counsel, Apr. 28, 1999, at 1.

Customs effort to ensure accuracy also revealed an unexplained inconsistency in the

cost comparison figures quoted to the Customs Service. Correspondence from counsel representing Toyota advised Customs of the one set of cost figures in correspondence dated April 28, 1999, another set of figures in the July 20, 1999, correspondence and a third set of figures in correspondence dated August 31, 2000. The figures quoted in the August 31, 2000, correspondence were $300 for the rubber bag and $18.00 for the polypropylene woven bag.5 See Correspondence of Counsel, Aug. 31, 2000, at 2. No documentation supporting these figures was produced.

Toyota’s submission of August 31, 2000, additionally stated the testing undertaken by

Toyota was conducted at “Customs’ direction” and that the Customs Service “indicated that the bags should be tested against British Standard # 6382 for multiple-use flexible intermediate bulk containers.” Correspondence of Counsel, Aug. 31, 2000, at 2. The Customs Service did not direct Toyota to have the container tested. Customs, in correspondence from the Director of the Commercial Rulings Division dated February 25, 2000, advised Toyota that “absent new information pertaining to the performance standards of these bags, we are not in a position to change our determination in HQ 961938.” Correspondence of Customs, Feb. 25, 2000, at 1. Customs further advised Toyota that “we cannot recommend any specific laboratories” and suggested that a representative of the Flexible Intermediate Bulk Container Association be contacted regarding information on the appropriate testing methods. Correspondence of Customs, Feb. 25, 2000, at 1.

5 Toyota produced an initial set of cost comparison figures in Japanese yen in correspondence from counsel dated May 7, 1998.


HQ 963508 (Continued) The Customs Service utilized all available resources to assess whether the

polypropylene woven bag in issue is of a kind that is practically, commercially reusable. If information exists which is suggestive of a contrary conclusion that information was not brought to the attention of the Customs Service. The burden is on the party requesting a ruling to provide the Customs Service with all relevant facts in sufficient detail to enable this Office to properly apply the law. See 19 C.F.R. 177.2 (b) (1) and (b) (2). If facts exist which support the contention of Toyota, those facts were not submitted in writing or in either of the conferences.

The Customs Service notes that Counsel’s correspondence of August 31, 2000, states

that Toyota “would not object” if Customs chose to conclude that the polypropylene woven bag was an instrument of international traffic. Correspondence of Counsel, Aug. 31, 2000, at 3. Customs, subsequent to a review of Chapter 19, Part 177 of the Code of Federal Regulations, Administrative Rulings, concludes that the referenced statement does not constitute a request to have the polypropylene bag declared an instrument of international traffic. The Customs Service will not of its own volition make a declaration of this nature. HOLDING Headquarters Ruling Letter 961938 has been reconsidered and it is the conclusion of the Customs Service that it should be AFFIRMED. The polypropylene woven bag in issue is “of a kind” of “sacks and bags … used for the packing of goods” that is “clearly suitable for repetitive use” pursuant to General Rule of Interpretation 5 (b). The container should be classified separately from any merchandise it is used to transport. The polypropylene woven bag is classified in subheading 6305.32.0010, HTSUS. The general column one rate of duty for merchandise entered in the following years is as follows: 1997 - nine and two-tenth (9.2) percent, ad valorem; 1998 - nine and one-tenth (9.1) percent, ad valorem; 1999 - nine (9) percent, ad valorem; and 2000 - eight and eight-tenths (8.8) percent, ad valorem. The textile category is 669.

It is recommended that Toyota contact its local Customs Service office prior to the importation of this merchandise to determine the current status of any restraints or requirements due to the changeable nature of the statistical annotation, the ninth and tenth digits of the HTSUS, and the restraint (quota/visa) categories applicable to textile merchandise.

The designated textile and apparel category may be subdivided into parts. If subdivided,

the quota and visa requirements applicable to the merchandise may be affected. It is recommended that Toyota review, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), since part categories are the result of international bilateral agreements and subject to frequent change. The Status Report is an internal issuance of the U.S. Customs Service and is available for inspection at local Customs Service offices.

Sincerely,

John Durant, Director Commercial Rulings Division


NY E89959 November 26, 1999 CLA-2-63:RR:NC:TA:352 E89959 CATEGORY: Classification TARIFF NO.: 6305.32.0010 Mr. Ralph M. Navedo Inter-Maritime Forwarding Company, Inc. 39 Broadway New York, NY 1006 RE: The tariff classification of 100% polypropylene flexible intermediate bulk container from Romania. Dear Mr. Navedo: In your letter dated November 10, 1999, on behalf of your client West Pack, Inc., you requested a classification ruling. The submitted sample, designated as a “Collapsible High-Capacity Bulk Bag For Granular Material”, is a flexible intermediate bulk container that measures 40” X 40” X 48”. It is manufactured by sewing together several panels of plain woven fabric. This fabric is made from polypropylene strip that measure approximately 1 to 2 millimeters in apparent width. These strips meet the dimensional requirements to be considered textile strips. Consequently, the fabric woven from these strips is textile fabric and the bulk bags made from the woven fabric are considered textile articles. These bulk containers feature four lifting straps sewn into the top corners of the bag and a fill spout with a textile tie to facilitate the closure of the bag. The bag weighs approximately 2.03 kilograms and is designed for the packing, storage and shipment of dry flowable commodities such as grain, minerals or chemicals. The applicable subheading for the flexible bulk intermediate container will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for sacks and bags, of a kind used for the packing of goods, of man-made textile materials, flexible intermediate bulk containers, weighing one kg or more. The duty rate will be 9 percent ad valorem. This bag falls within textile category designation 669. Based upon international textile trade agreements products of Romania are subject visa requirements. The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment.


NY E89959 This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Alan Tytelman at 212-637-7092.

Sincerely,

Robert B. Swierupski

Director,

National Commodity

Specialist Division


NY E89542 November 16, 1999 CLA-2-63:RR:NC:TA:352 E89542 CATEGORY: Classification TARIFF NO.: 4819.40.0020; 6305.32.0010 Mr. Bill Brady OIA Global Logistics 8338 NE Alderwood Road, Suite 200 Portland, OR 97220 RE: The tariff classification of a textile reinforced paper shipping bag and a nylon fabric flexible intermediate bulk container from China Dear Mr. Brady: In your letter dated November 3, 1999, on behalf of your client AgriGlobal, Inc., you requested a classification ruling. The sample submitted is being returned to you as requested. A sample of the reinforced paper bag as well as photographs of the flexible intermediate bulk container accompanied your request for a ruling. The paper bag, measuring 39.5 centimeters by 65 centimeters by 7 centimeters, is manufactured by laminating a woven fabric scrim between two layers of paper. This fabric scrim, which reinforces the paper, is made of 100% nylon monofilaments that have been plain woven. The paper bag is designed to pack, store and ship fertilizer. The second item, is a flexible intermediate bulk container made of 100% nylon strip. Measuring either 36” X 36” X 50” or 36” X 36” X 54” these bags will be manufactured by sewing together panels of plain woven fabric made from nylon strip. The strip from which the fabric used to construct these bags is woven, measures 2 to 3 millimeters in width and meet the dimensional requirements to be considered man-made textile strip. These bags feature lifting handles and a funnel at the bottom to facilitate the discharge of its contents. The bags are designed for the storage and transport of fertilizer. In a telephone conversation with this office you indicated that the bags weigh approximately 2.7 kilograms each. The applicable subheading for the reinforced paper bags will be 4819.40.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for cartons, boxes, cases, bags and other packing containers, of paper, paperboard, cellulose wadding, or webs of cellulose fibers...other sacks and bags, including cones, shipping sacks and multiwall bags, other than grocers’ bags. The duty rate will be 2.6 percent ad valorem.. The applicable subheading for the nylon flexible intermediate container will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for sacks and bags, of a kind used for the packing of goods, of man-made textile materials, flexible intermediate bulk containers, weighing one kg. or more. The duty rate will be 9 percent ad valorem. The nylon flexible intermediate bulk container falls within textile category designation 669. Based upon international textile trade agreements products of China are subject to quota and the requirement of a visa. The designated textile and apparel categories and their quota and visa status are the


NY E89542 result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).


Sincerely,


Director,

National Commodity

Specialist Division


NY E86226 September 15, 1999 CLA-2-63:RR:NC:TA:352 E86226 CATEGORY: Classification TARIFF NO.: 6305.32.0010; 6305.32.0020

Mr. Jay Ponnakudam

Harpster of Philipsburg, Inc.

200 Shady Lane

P.O. Box 429

Philipsburg, PA 16866-0429

RE: The tariff classification of flexible intermediate bulk containers from India or the United Arab Emirates.

Dear Mr. Ponnakudam:

In your letter dated August 10, 1999 you requested a classification ruling.

The submitted literature depicts a flexible intermediate bulk container made from 100% polypropylene woven fabric. A sample swatch from one of the containers was enclosed with the correspondence. Although the literature lists many variations in the construction of the container, this response will be limited to containers made from the fabric submitted. Since changes in the width of the strips from which the container is made or the application of coatings can effect classification, it is not possible to address the classification of those containers for which a sample has not be submitted. The sample swatch is plain woven and is constructed from 100% polypropylene strip that measure 2 millimeters in width. These strips meet the dimensional requirements to be considered textile strip and the fabric woven from them are considered textile fabrics. The literature indicates that the strips will be woven on a circular loom into a fabric and then assembled with other woven fabric components such as tops, bottoms, chutes and handles made of the same materials as the main body of the bag. These bags are designed to store and transport dry flowable commodities such as fertilizer, cement, chemicals, grain etc.

The applicable subheading for the flexible intermediate bulk container if the bag weighs one kilogram or more will be 6305.32.0010, Harmonized Tariff Schedule of the United States (HTS), which provides for sacks and bags, of a kind used for packing of goods, of man-made textile materials, flexible intermediate bulk containers, weighing one kg. or more. The duty rate will be 9 percent ad valorem.

The applicable subheading for the flexible intermediate bulk container if the bag weighs less than one kilogram will be 6305.32.0020, Harmonized Tariff Schedule of the United States (HTS), which provides for sacks and bags, of a kind used for packing of goods, of man-made textile materials, flexible intermediate bulk containers, other. The duty rate will be 9 percent ad valorem.


NY E86226

Both the bags (those weighing one kilogram and over and those weighing less than one kilogram) fall within textile category designation 669. Based upon international textile trade agreements products of India are subject to quota and the requirement of a visa while products of the United Arab Emirates are subject to visa requirements.

The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).


Sincerely,


Director,

National Commodity

Specialist Division


fibca bulletin - flexible intermediate bulk container

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