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HQ 965150




August 20, 2001

CLA-2 RR:CR:TE 965150 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9907

Ms. Deborah L. Aldinger

Fox Run Craftsmen
P.O. Box 2727
1907 Stout Drive
Ivyland, Pennsylvania 18974

RE: Cooler Bag; Multiple Bottle Case; Portable, Soft-Sided; Outer Surface of Man-Made Textile Material; Set; Subheading 6307.90.9907; SGI v. United States.

Dear Ms. Aldinger:

The purpose of this correspondence is to respond to your request of August 17, 2000, addressed to the National Commodity Specialist Division of the Customs Service. The correspondence in issue requested, on the behalf of Fox Run Craftsmen, a binding classification ruling of six articles, two “picnic backpacks”, two “2 or 3 bottle wine totes” and two “wine bottle carriers.”

This ruling letter will classify the “2 or 3 bottle wine tote” and the “2or 3 bottle wine & cheese holder.” The picnic backpacks and the wine totes designed to carry single bottles will be addressed in ruling letters HQ 964539 and HQ 965151, respectively.

This ruling is being issued subsequent to the following: (1) A review of your submission of August 17, 2000; and (2) An examination of the samples submitted with your request.

FACTS

The articles in issue have been identified by Fox Run Craftsmen as item number: 7259, a “2 or 3 bottle wine tote,” and item number: 7261, a “2 or 3 bottle wine & cheese holder.” The “2 or 3 bottle wine tote,” item number: 7259, is a soft-sided, insulated container that measures thirteen (13) inches in height, ten (10) inches wide and four (4) inches deep. The exterior is composed of a man-made textile fiber coated or covered with polyvinyl chloride that does not obscure the textile fabric. The interior is composed of plastic sheeting. The container is lined with a one-fourth (1/4) of an inch foam insulation.

It is specifically note that the Customs Service was not provided and did not undertake any laboratory analysis to determine the insulative quality, if any, of the material. The top and bottom additionally have a stiff cardboard lining. Selected seams, corners and points of attachment are covered with plastic.

The container has a flap top that secures closed through the use of a zipper that has two pulls. The zipper is approximately one (1) inch from the top of the container. A pocket measuring ten and one-fourth (10 ¼) inches by six and one-half (6 ½) inches is on the front of the container. The pocket is very narrow, measuring only about one-fourth (1/4) of an inch from front to back. The pocket has a zipper closure.

The container also has a five (5) inch long and one and one-half (1 ½) inch wide pocket sewn onto one of the exterior sides. A metal corkscrew, knife and bottle-opener combination is stored in the pocket. The pocket secures closed through the use of a flap that attaches to the pocket by means of a hook and loop fastener system.

The container may be carried by means of a handle or a shoulder strap. The handle is located on the top of the container. It is approximately six (6) inches long and made of one and one fourth (1 ¼) of an inch wide textile webbing that is partially covered by plastic. The shoulder strap is adjustable and is made of the same textile webbing as the handle. The strap attaches to the sides of the container by means of metal clips and “D” rings.

A tag, one and one fourth (1 ¼) inches by one and three-fourths (1 ¾) inches, with the word “Sundowner” is attached to the item by a small metal chain looped through the zipper pull on the front pocket. The container additionally has a plastic and metal label sewn and glued to the container that reads “Sundowner.”

A smaller container that measures approximately seven and one-half (7 ½) inches in height, seven (7) inches wide and three (3) inches from front to back is stored inside the larger container. The smaller container, composed of the same material as the larger container, has a divider in the center and holds two plastic wineglasses.

The “2 or 3 bottle wine & cheese holder,” item number: 7261, is identical to item 7259 with the following exceptions noted. The top of item 7261 has an additional zippered, insulated compartment that is approximately three inches deep, but in all other respect is composed of the same material and measures the same as the rest of the container. Item 7261 also includes a plastic cutting board that measures nine and one-fourth (9 ¼) inches long and five and one-half (5 ½) inches wide.

ISSUES

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the complete articles identified as the “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” which include the insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combinations and for the purposes of classifying Item 7261, the cutting board ?

Do the insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combination and for the purposes of classifying Item 7261, the cutting board, constitute “items in a set put up for retail sale” pursuant to General Rule of Interpretation 3 (b) resulting in their classification by the component which gives the set its essential character ?; and

If the insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combination and for the purposes of classifying Item 7261, the cutting board, constitute a set pursuant to General Rule of Interpretation 3 (b), what is the component that gives the set its essential character for classification purposes ?

LAW AND ANALYSIS

The responsibility for interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) rests with the U.S. Customs Service. See Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation. See 19 U.S. C. 1202 (West 1999); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

General Rule of Interpretation 1 provides, in part, 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. Although 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, the Explanatory Notes (EN) “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 2, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUSA. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

The initial responsibility of the Customs Service is to examine the plain meaning of the statutory text. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (C.I.T. 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (C.I.T. 1994). If the plain language of the heading establishes the clear and unambiguous intent of Congress, the classification inquiry at the heading level is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F. 3rd 1375, 1379 (Fed. Cir. 1999).

Commencing classification of the insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combinations and for the purposes of classifying Item 7261, the cutting board, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Since no one heading of the tariff schedule provides for the classification of all of the items that constitute the “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder,” it is necessary for the Customs Service to examine the other General Rules of Interpretation in their sequential order.

A review of GRI 2 leads the Customs Service to the conclusion that its provisions will also not prove beneficial in classifying all of the merchandise in issue. General Rule of Interpretation 2 (a) addresses “incomplete or unfinished” articles, as well as those articles entered “unassembled or disassembled.” General Rule of Interpretation 2 (b) advises, in pertinent part, that “[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances.”

The merchandise under consideration in this ruling letter does not constitute incomplete, unfinished, unassembled or disassembled articles that are addressed in GRI 2 (a). The insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combinations and for the purposes of classifying Item 7261, the cutting board, are composed of man-made textile fibers coated or covered with polyvinyl chloride, plastic and a base metal and are, in accordance with GRI 2(b), “goods consisting of more than one material.” Goods consisting of more than one material which cannot be classified pursuant to GRI 1 or 2 are to be classified according to the principles of GRI 3. See General Rule of Interpretation 2(b).

An examination of the dictates of GRI 3 is appropriate because the articles are prima facie classifiable under two or more headings: the soft-sided insulated carrying cases and the smaller wineglass holders in heading 6307, HTSUSA, the plastic wineglasses and the cutting board in heading 3924, HTSUSA, and the corkscrew, knife and bottle-opener combinations in heading 8211, HTSUSA. General Rule of Interpretation 3(a) provides that the articles should be classified according to the heading which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of the “items in a set put up for retail sale.” The items which constitute the “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” are not mixed or composite goods, warranting inquiry into the issue of whether they cumulatively constitute “items in a set put up for retail sale.” See generally, What Every Member of The Trade Community Should Know About: Classification of Sets Under the HTS, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.”

Explanatory Note (X) of GRI 3(b) provides three factors to be considered when determining whether goods have been put up in sets for retail sale. The factors are:

The goods consist of at least two different articles that are, prima facie, classifiable in different headings;

The goods consist of articles put up together to “meet a particular need or carry out a specific purpose;” and

The goods are “put up in a manner suitable for sale directly to users without repacking.” General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X) (a) – (c).

The first factor of EN (X) of GRI 3 (b) mandates that the goods consist of at least two different articles that are prima facie classifiable in different headings. The insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combinations and for the purposes of classifying Item 7261, the cutting board, consist of more than one article and are prima facie classifiable in different headings.

The insulated carrying cases and the smaller wineglass containers stored inside the insulated carrying cases are classified in heading 6307, HTSUSA. See SGI, Inc. v. United States, 122 F. 3d 1468 (Fed. Cir. 1997) (holding that portable soft-sided vinyl coolers used for the storage and serving of food or beverages, that possess insulative properties similar to both hard and other soft-sided coolers having a one-half inch thick closed cell polyethylene foam insulation are properly classified as “other household articlesof plastics” in subheading 3924.10.50, HTSUSA). The Court stating in dicta that the containers designated by name in heading 4202, HTSUSA, do not encompass containers that organize, store, protect, or transport food or beverage. Heading 6307, HTSUSA, provides for “Other made up articles, including dress patterns.” See Explanatory Note 63.07 (stating that heading 63.07 provides for the classification of made up textile articles that are not provided for more specifically else where in the Nomenclature).

The plastic wineglasses and cutting board are classifiable in Chapter 39, Plastic and Articles Thereof.” The heading that most specifically describes the items is heading 3924, HTSUSA, which provides for “[t]ableware, kitchenware, other household articles and toilet articles, of plastics.” A review of the Explanatory Notes to Chapter 39 supports this decision. See Explanatory Note 39.24 (A) (discussing tableware, kitchenware and other household articles made of plastic).

The metal corkscrew, knife and bottle-opener combination is classifiable in Chapter 82, “Tools, Implements, Cutlery, Spoons and Forks, of Base Metal; Parts Thereof of Base Metal.” Heading 8211, HTSUSA, providing for “Knives with cutting blades, serrated or not (including pruning knives), other than knives of heading 8208 Heading 8208 provides for the classification of knives and cutting blades for machines or mechanical appliances.” encompasses the corkscrew, knife and bottle-opener combination. Heading 8211, HTSUSA. See generally Explanatory Note 82.15.

The third element set forth in Explanatory Note X of GRI 3 (b) concerns the manner in which the items are packaged at the time of importation. The items, in order to be considered a set for classification purposes, must be packaged in a manner suitable for sale directly to users. The items which comprise the “2 or 3 bottle wine tote” and the “2or 3 bottle wine & cheese holder” are packaged in a manner that is suitable for sale directly to the user. The wineglasses are packaged inside the smaller wineglass holders which are in turn packaged inside the larger insulated containers. The corkscrew, knife and bottle-opener combinations are packaged in a specifically designed pocket located on the exterior side of each of the insulated containers. The cutting board that is part of item 7261 is packaged in the exterior, front pocket.

The issue that remains unresolved, the second of the three factors, is whether the insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combinations and for the purposes of classifying Item 7261, the cutting board, as put up together, “meet a particular need or carry out a specific activity.” A review of each of the examples of sets in EN (X) indicates that components of sets share at lease one common trait. See HQ 953472 (Mar. 21, 1994). The fact that the drafters of EN (X) did not explain when goods put up together “meet a particular need or carry out a specific purpose” suggests that resolution of the issue must be determined by analogy on a case-by-case basis.

The items that comprise each example of a set in EN (X) are related to one another in such a fashion that they interact together to serve a distinct purpose or function to enable a singular result to be achieved. The items in examples 1 (a) and 1 (b) are used in conjunction with one another to complete a sandwich meal and prepare a spaghetti meal. The articles in example 2 are used together for the purpose of hair grooming and the items in example 3 function with one another to enable the user to draw.

The Customs Service, in determining whether the articles that comprise the “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” “meet a particular need or carry out a specific activity,” must determine whether all of the items have a nexus with one another such that each of them is intended to be used together or in conjunction with one another. The insulated carrying cases are designed to organize, store, protect, preserve, serve and transport food and beverages. The smaller wineglass holders are designed to store and protect the wineglasses. The wineglasses enable the user to enjoy a glass of wine or another beverage. The corkscrew, knife and bottle-opener combinations enables the user to remove the cork and metal or wax wrap from the top of a bottle of wine, as well as to peel and slice or otherwise cut food items transported in the carrying case. This implement also enable the user to open other traditional bottled refreshments that may also be carried in the insulated cases since the cases are not designed to exclusively carry wine.

General Rule of Interpretation 3(b) provides that goods put up in sets for retail sale shall be classified as if they consisted of that component of the set which gives the set its “essential character.” The General Rules of Interpretation do not define the phrase “essential character,” but the Explanatory Notes offer a non-exhaustive list of factors which may be considered. The factors include: (1) The nature of the component; (2) Its bulk; (3) Its quantity; (4) Its weight; (5) Its value; and (6) The role of the component in relation to the use of the goods. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (VIII). Explanatory Note (VIII) of GRI 3(b) specifically states that the essential character of a set will “vary between different kinds of goods.” Id.

A review of judicial precedent and prior Customs Service Headquarters Ruling Letters also serves to highlight the meaning of “essential character.” The Court of International Trade in Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (C.I.T. 1996) referencing United States v. United China & Glass, 293 F. Supp. 734, 737, 61 Cust. Ct. 386 (1968) stated that essential character is that attribute “which is indispensable to the structure, core or condition of the article, i.e. what it is.” Headquarters Ruling Letter 955714, elaborating on the decision in United China, stated that “[i]n general, essential character has been construed to mean that attribute which strongly marks or serves to distinguish what an article is.” See HQ 955714, supra; See also, Pillowtex Corp. v. United States, 171 F.3d 1370 (Fed. Cir. 1999); HQ 951902, supra.

It is the conclusion of the Customs Service that the components of the “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” which give the sets their “essential character” are the insulated carrying cases. The particular need or specific purpose that the sets serve is the ability to organize, store, protect, preserve, serve and transport food and beverages. The insulated carrying cases have the indispensable role in this activity. It is the insulated carrying cases that provide the sets with their predominate intrinsic and financial value. See HQ 088323 Id. (declaring the pencil box to constitute the essential character of the set).

Having concluded that the insulated carrying cases are classified in heading 6307, HTSUSA, it is necessary to classify the items at the appropriate subheading level. The “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” of instant consideration are classified in subheading 6307.90.9907, HTSUSA, as “Other made up articles, including dress patterns: Other: Other: Other, Cooler bags with an outer surface of textile materials: Of man-made fibers.” See HQ 961035 (June 12, 1998) (cooler bag of man-made textile fibers, 6307.90.9907, HTSUSA); See generally HQ 961035, Id. (cooler bag of cotton fibers, 6307.90.9905, HTSUSA); HQ 962243 (Mar. 17, 1999), HQ 963602 (Oct. 18, 1999), HQ 961945 (April 7, 1999) and HQ 961944 (Sept. 25, 1999) (cooler bags with outer surface of compact plastic with a textile backing, 6307.90.9989, HTSUSA); HQ 960997 (June 18, 1998) (cooler bag with a plastic outer surface, 3924.10.50, HTSUSA).

HOLDING

The insulated carrying cases, the smaller wineglass holders, two plastic wineglasses, the metal corkscrew, knife and bottle-opener combinations, and for the purposes of classifying Item 7261, the cutting board, that comprise the “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” are sets for the purposes of classification pursuant to the Harmonized Tariff Schedule of the United States Annotated.

The items that afford the sets their essential character are the insulated carrying cases.

The “2 or 3 bottle wine tote” and the “2 or 3 bottle wine & cheese holder” are classified in subheading subheading 6307.90.9907, HTSUSA, as “Other made up articles, including dress patterns: Other: Other: Other, Cooler bags with an outer surface of textile materials: Of man-made fibers.”

The General Column 1 Rate of Duty is seven (7) percent, ad valorem.

The textile quota category is 670.

It is recommended that Fox Run Craftsmen 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 HTSUSA, 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 Fox Run Craftsmen 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

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