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HQ 957465




January 4, 1995

CLA-2 CO:R:C:T 957465 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3030

Norman W. DeWitt
Vice President, Operations
Rescare, Inc.
6044 Cornerstone Court West
Suite C
San Diego, California 92121

RE: Tariff classification of a carrying bag for a prescription medical device from Australia; GRI 5(a); GRI 3(b); composite article.

Dear Mr. DeWitt:

This is in response to your letter, dated December 20, 1994, requesting tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) for a carrying bag imported with a prescription medical device. A sample was sent to this office for examination and will be returned to you under separate cover.

FACTS:

The submitted sample is a polyester carrying bag (600 denier polyester) measuring approximately 14 inches by 12 1/2 inches by 7 inches. It is imported with a device used in the treatment of a medical condition known as obstructive sleep apnea, a respiratory disorder. You seek to have the carrying bag classified with the medical apparatus.

The bag possesses a top handle and a shoulder strap. It features three zippered pockets which you state have been custom designed to the following specifications:

-- A small front pocket designed to carry essential documentation (user manual and patient data) and the power cord for the unit;

-- A center pocket designed to carry necessary products such as the mask system, a flow generator, DC power adapters, an electronic pressure setting device;

-- A rear pocket designed to carry air tubing and connectors.

The center and rear pockets run the full length and width of the bag. The front pocket measures approximately 6 1/2 inches by 12 1/2 inches. The bag is not internally fitted to hold its contents; nor is it shaped to the form of the medical parts.

ISSUE:

What is the proper tariff classification for the carrying bag?

LAW AND ANALYSIS:

General Rule of Interpretation (GRI) 5(a) states:

Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character (emphasis added).

The Explanatory Note (EN) to GRI 5(a) provides that:

(I) This Rule shall be taken to cover only those containers which:

(1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article which they contain;

(2) are suitable for long-term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;

(3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;

(4) are of a kind normally sold with such articles; and

(5) do not give the whole its essential character.

(Emphasis added).

In order for the carrying bag to be classified with the medical apparatus, it must meet the criteria set forth above.

A container which meets the specifications of GRI 5(a) must be specially shaped or fitted to hold its contents. You concede that the carrying bag is not shaped to the form of the medical equipment. However, you state that it has been custom designed for packaging the unit. Specifically, you observe that the pockets are designed to hold specific components.

While we agree that the bag is suitable for holding the various parts of the unit, we do not agree that the pockets are fitted as required by GRI 5(a). The pockets could just as easily hold clothes, camera equipment, school supplies and other personal effects of various dimensions. Hence, the bag is not fitted to hold a specific article or set of articles. Consequently, the carrying bag fails the first criterion.

Moreover, the bag has the appearance and characteristics of an ordinary travel bag. Unlike the exemplars set forth in GRI 5(a), which have little or no use apart from their contents, the instant item is desirable in and of itself. Similar bags are sold individually at retail. For this reason, we conclude that the subject merchandise is not of a kind normally sold with the medical equipment. Therefore, the carrying bag also fails the fourth criterion.

GRI 3(b) states:

Mixtures, composite goods consisting of different materials or made up of different components, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character (emphasis added).

On occasion, we have determined that a carrying bag and its contents may be classified as composite good, with the essential character imparted by the contents. See Headquarters Ruling Letter (HRL) 955787, dated April 26, 1994 (carrying bag classified with boxer shorts); HRL 087280, dated July 16, 1990 (carrying bag classified with ponchos); HRL 086343, dated July 13, 1990 (carrying bag classified with windbreaker); HRL 086344, dated July 5, 1990 (carrying bag classified with coveralls). Thus, GRI 3(b) provides an alternative basis by which a carrying bag may be classified with its contents.

The EN to GRI 3(b) provides in pertinent part that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts (emphasis added).

As noted above, the carrying bag is in the nature of a travel bag for carrying various personal effects. It is of a durable construction and would normally be sold as an independent product in its own right. Consequently, in this instance the carrying bag and the medical equipment do not comprise a composite article.

As the carrying bag cannot be classified with the medical device, it must be classified under the heading which most specifically describes it. Therefore, it is classifiable in heading 4202, HTSUS, which provides in pertinent part for travel, sports and similar bags.

HOLDING:

The subject merchandise is classifiable under subheading 4202.92.3030, HTSUS, which provides for travel, sports and similar bags: with outer surface of textile materials: other, other: of man-made fibers: other. The applicable rate of duty is 19.8 percent ad valorem. The textile quota category is 670.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are the subject of frequent negotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importing the merchandise to determine the status of any import restraints or requirements.

Sincerely,

John Durant, Director

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