The Court of Appeals for the Federal Circuit has upheld a decision by the Court of International Trade that Ziploc® brand recloseable sandwich bags are properly classified as plastic bags for the conveyance or packing of goods under HTSUS 3923.21.00 rather than as plastic household articles under HTSUS 3924.90.56.

The CIT said heading 3923 is a principal use provision encompassing goods of plastic used to carry or transport other goods of any kind, but the plaintiff argued that this heading should apply only to articles used for commercial purposes; i.e., the transportation of goods between sellers and their suppliers. The CAFC disagreed, stating among other things that the U.S. Customs rulings cited by the plaintiff are not consistent or persuasive and are not entitled to deference.

The CIT also determined that heading 3924 is an eo nomine provision; i.e., one that describes the goods by name instead of use. The CAFC agreed with the CIT’s reasoning that the key inquiry under the terms of this heading is where the articles are located rather than how they are used and pointed out that none of the terms in heading 3924 acts as an adjective that suggests a type of use rather than a location where the objects can be found.

Because the bags are classifiable under both headings, the CIT applied General Rule of Interpretation 3(a) and concluded that heading 3923 is more specific because it requires the goods to be used in a specific way, whereas heading 3924 merely describes the articles regardless of their use. The CAFC notes that neither the plaintiff nor the defendant challenged this determination.

For assistance pursuing a classification issue through litigation, please contact customs attorney Lee Sandler at (305) 894-1000.

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