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HQ 960367




August 6, 1997
CLA-2 RR:TC:TE 960367 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9025

Robert Dorf
Kuehne & Nagel, Inc.
10 Exchange Place, 19th Floor
Jersey City, NJ 07302

RE: Classification of cooler sack imported with a bottle of champagne; durable construction; storage and protection; heading 4202, HTSUS

Dear Mr. Dorf:

This is in response to your letter, dated July 5, 1996, on behalf of your client, Remy Amerique, Inc., regarding the classification of a drawstring cooler sack under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We regret the delay in responding to your inquiry. A sample was submitted to this office for examination.

FACTS:

The submitted sample is a drawstring sack consisting of various layers of materials:
a. the exterior of the bag is constructed of a plain woven filament nylon fabric; b. the next layer is constructed of a man-made fiber for insulation; c. the last layer is composed of two layers of plastic sheeting combined with a glass fiber scrim; d. the innermost layer of plastic is metalized with aluminum.

The sack measures approximately 13-1/2 inches in length and features a rounded bottom measuring approximately 3-1/2 inches in diameter, a drawstring closure approximately 4 inches from the top of the sack, and a logo at the face of the sack with the words "Maison fondee en 1785, PIPER-HEIDSIECK CHAMPAGNE, Reims-France". It is clear from the design of the sack that the drawstring closure is strategically located at the neck of the bottle to allow the bag to be closed with ease. You state that these sacks are manufactured in China and will be shipped to France where they will be packed with champagne bottles.

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the rules of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

GRI 5 states:
a. Camera cases, musical instruments, gun cases, drawing instrument cases, necklace cases and similar containers, specifically 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;
b. Subject to the provisions of rule 5(a) above, 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.

The subject sack is not classifiable with the champagne bottle because the sack does not meet all of the criteria set out by GRI 5. Although the subject sack is fitted and provides protection for the champagne bottle it is not of a kind normally sold with champagne bottles and thus does not meet the criteria set out in GRI 5(a). Additionally, the sack is not the "usual" type of packing for the champagne. The sturdy construction of the sack ensures that it will be used as "protective packing" not only for the present champagne bottle, but also for any future wine purchases. Furthermore, the insulated design assures that the sack serves another purpose, i.e., to keep any bottle at an optimum temperature. As such, the sack is intended for repetitive use- a criteria clearly excepted by GRI 5(b). Accordingly, the sack and champagne bottle are separately classified.

Heading 4202, HTSUS, provides for, trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper. (Emphasis added). In Totes, Inc., v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), the Court of International Trade concluded that the "essential characteristics and purpose of Heading 4202 exemplars are...to organize, store, protect and carry various items." The Court also ruled that by virtue of ejusdem generis the residual provision for "similar containers" in heading 4202, HTSUS, is to be broadly construed.

It is clear that the subject merchandise is of a strong and durable construction. The purpose of the sack therefore becomes to 1) provide protection against breakage of the bottle; 2) insulate the bottle and keep it at a desired temperature; 3) secure a means by which to carry the bottle. We also note that "bottle cases" are specifically enumerated in heading 4202, HTSUS. Although the subject sack is not a "case", it does share the fundamental characteristics attributable to the cases, that is, as it relates to storage and protection. As such, these protective, storage and organizational properties clearly make the sack the type of article provided for under 4202, HTSUS.

HOLDING:

The subject merchandise is properly classified in subheading 4202.92.9025, HTSUSA, which provides for, trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: other: with outer surface of sheeting of plastic or of textile materials: other: other: with outer surface of textile materials: other: of man-made fibers. The applicable rate of duty is 19.3 percent ad valorem and the 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 subject to frequent negotiations and changes, we suggest that your client 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, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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