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HQ 954419




July 23, 1993

CLA-2 CO:R:C:M 954419 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9401.79.00

Ms. Valerie Taylor
Kendall Corporation
19 Meadowbrook Road
Woodbridge, Ct. 06525

RE: Bag, barnico; GRI 3(c)

Dear Ms. Taylor:

Your letter dated May 12, 1993, to the Area Director of Customs in New York, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of the MB-1 Container Barnico Bag, has been referred to this office for a direct reply to you. A sample along with descriptive literature was submitted for examination.

FACTS:

The sample consists of a textile material bag which has a flap with eyelets and a separate rectangular rest member having peripheral pegs which engage with the eyelets to permit the rest member to be used as a back rest or a neck rest. The bag contains a stiffening device comprising two L-shaped members rotatably arranged in a cross-member. With the ends of the L- shaped member inserted into respective pockets and/or tabs inside the bag, a firm and stable support is provided. A carrying strap is connected to the bag. The bag measures approximately 20 inches long x 12 inches wide x 11-1/2 inches high. The bag, loose inner lining and webbing are made of nylon. The frame is aluminum and the buckles are plastic.

United States Patent #5,070,973 indicates that the item was designed to satisfy two purposes, one as a container to carry personal effects, the other as a back rest or seat. It is unique in that a sport bag does not usually have an elaborate system of framing and seat pad as does the Barnico Bag. It is designed so that the component referred to as the "rest member" is carried as an addition to the bag so that it does not fill the interior space.

The design of the article indicates that it is both suitable for use as a portable seat/backrest and as a carry-all bag. Neither use appears to be casual, incidental, or subordinate to the other. The article can easily be used to carry merchandise. When carried, the bag may be supported by the shoulder strap.

ISSUE:

Is the merchandise classifiable under heading 9401, HTSUS, which provides for seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof, or under heading 4202, HTSUS, which provides for trunks, suitcases, vanity cases, etc?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

GRI 2(b), HTSUS, provides in part that "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3."

GRI 3, HTSUS, provides as follows:

3. When, by application of Rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.
However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The article is prima facie classifiable under either heading 4202, HTSUS, or heading 9401, HTSUS. However, GRI 3(a) is not applicable because neither heading provides a more specific description of the merchandise.

GRI 3(b) is not viable because the article has a dual purpose which makes it more than an article of heading 4202, HTSUS, or a seat of heading 9401, HTSUS. Consequently, we are unable to ascertain which component of the article imparts the essential character thereto.

In this instance the merchandise is classifiable under that heading which occurs last in numerical order among those which equally merit consideration pursuant to GRI 3(c), HTSUS. Between heading 4202, HTSUS, and subheading 9401.79.00, HTSUS, subheading 9401.79.00, HTSUS, occurs last in numerical order.

HOLDING:

The "Barnico Bag" is classifiable under subheading 9401.79.00, HTSUS, which provides for seats (other than those of heading 9402), whether or not convertible into beds, , other seats, with metal frames, other, outdoor, with textile covered cushions or textile seating or backing material. The applicable rate of duty for this provision is 4% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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