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HQ 964447




September 13, 2002

CLA-2 RR:CR:TE 964447 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500
3924.90.5500

Jason M. Waite, Esquire
Alston & Bird, LLP
601 Pennsylvania Avenue, N.W.
North Building, 10th Floor
Washington, D.C. 20229

RE: Traveling Bag; Insulated Beverage Bag; General Rules of Interpretation 3(b) and (6); Subheadings 4202.92.4500 and 3924.90.5500, HTSUSA.

Dear Mr. Waite:

The purpose of this correspondence is to respond to your request dated May 23, 2000. The correspondence in issue requested, on the behalf of your client, In Zone Products, Inc., a binding classification ruling of the merchandise described as a “Snack Kit” and a plastic box.

This ruling is being issued subsequent to the following: (1) A review of your submissions dated May 23, 2000, and May 15, 2002; (2) A telephone conference conducted on September 12, 2002, between a member of my staff and counsel for the importer; and (3) A review of the sample “Snack Kit” and separately imported plastic box.

FACTS

The articles in issue are identified by In Zone as a “Snack Kit” and a plastic sandwich box. The “Snack Kit” is a carrying bag composed of compact plastic sheeting with a textile fabric backing. It has three compartments, a center compartment that measures five and one-half inches in height, six inches in width and three inches in depth, a pocket on the right side of the center compartment that measures the same height and depth as the main compartment and is approximately one inch wide, and a partially circular compartment on the left side designed to carry a bottle.

The center compartment and the pocket have fold-over flaps that secure closed by means of hook and loop fabric fasteners. The bottle compartment is insulated with one-eighth of an inch thick foam insulation. It is designed to secure around a single bottle by means of a drawstring with a plastic, spring-loaded locking mechanism. A partially padded, woven textile handle extends from one side of the center compartment to the other side.

The plastic box is composed entirely of molded plastic and it includes an interior plastic tray. The box measures three and one-half inches in depth and is approximately five inches square. The box has a lid that snaps closed. The interior plastic tray is slightly smaller than the exterior of the box and is designed to fit snuggly inside the box. It is approximately one inch in depth.

The Customs Service is advised that the “Snack Kit” and the plastic box will be imported in separate shipments for Customs purposes.

See generally Altman & Co. v. United States, 13 Ct. Cust. Appls. 315 (1925) (providing that separately packaged parts of the same merchandise arriving on the same shipment should be considered a single entry and classified together); See also James G. Wiley v. United States, 56 Cust. Ct. 331 (1966) (providing that arrival of different aircraft constitute both physically and commercially separate importations, and that entries of merchandise from different vessels could not be merged for the purposes of appraisement or classification).

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described “Snack Kit” and plastic box with interior plastic tray ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service. See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also 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. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “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 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. 3d 1098, 1109 (Fed. Cir. 1995).

CLASSIFICATION OF “SNACK KIT”

Commencing classification of the “Snack Kit” in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4202, HTSUS, provides for the classification of:

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, insulated food or beverage 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).

“Traveling bags” are defined in Additional U.S. Note 1 of Chapter 42, HTSUSA. Additional U.S. Note 1 provides, in part, that “travel, sports and similar bags” are “goodsof a kind designed for carrying clothing and other personal effects during travel.” Chapter 42, Additional U.S. Note 1. “[I]nsulated food or beverage bags” are described by the Explanatory Notes as covering “reusable insulated bags used to maintain the temperature of foods and beverages during transport or temporary storage.” Explanatory Note 42.02. See also Totes, Inc. v. United States, 865 F. Supp. 867 (Ct. Int’l Trade 1994) (providing that articles designated eo nomine in heading 4202, HTSUSA, are designed to organize, store, protect and carry).

It is the conclusion of the Customs Service, based on the above discussion, that the “Snack Kit” is designated eo nomine, that is by name, in heading 4202, HTSUSA. Customs, at this stage of the classification process, is not stating whether the item is a traveling bag or an insulated beverage bag. This is not initially necessary because pursuant to GRI 1, the initial step is to determine the correct classification “according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. Classifying the “Snack Kit” pursuant to GRI 1, it is classified in heading 4202, HTSUSA.

Continuing the classification of the article at the subheading level, subheading 4202.92, HTSUSA, provides for: “Other: With outer surface of sheeting of plastic or of textile materials.” The “Snack Kit” at the six-digit level is, therefore, properly classified in subheading 4202.92, HTSUSA.

Classifying the “Snack Kit” at the next level is more problematic. The merchandise descriptions at the next level of indentation that must be compared are “Insulated food or beverage bags:” and “Travel, sports and similar bags:”. See Subheading 4202.92.05, HTSUSA, through subheading 4202.92.4500, HTSUSA.

The General Rules of Interpretation, particularly GRI 6, permit the application of the principles of GRI 1 through GRI 5 at the subheading level provided that “only subheadings at the same level are comparable.” General Rule of Interpretation 6. Application of GRI 1 and GRI 2 at this descriptive level does not resolve the question of the proper classification of the “Snack Kit.” Customs must now utilize the precepts of GRI 3, as applied through GRI 6.

General Rule of Interpretation 3, as applied to the next descriptive subheading level through GRI 6, becomes applicable when pursuant to GRI 2(b) or for any other reason the merchandise under classification consideration is prima facie classifiable under two or more subheadings. In this instance, the “Snack Kit” is prima facie classifiable as an insulated food or beverage bag and as a travel, sports or similar bag. The “Snack Kit” has both a distinct insulated beverage compartment, as well as a distinct travel or sports compartment.

General Rule of Interpretation 3(a), which states, in part, that “[t]he [sub]heading which provides the most specific description shall be preferred to a more general description” is not applicable. General Rule of Interpretation 3(a) is not applicable because the “Snack Kit” is a composite good composed of the travel compartment, as well as, the insulated beverage compartment and the descriptive subheading levels under consideration each only refer to part of the entire article. When the subheadings under consideration each only refer to part of a composite good, “those [sub]headings are to be regarded as equally specific” and resort must then be had to GRI 3(b). See generally General Rules for the Interpretation of the Harmonized System, Rule 3(b) Explanatory Note (IX) (providing, in part, that composite goods include goods made up of different components in which “the components are attached to each other to form a practically inseparable whole”).

General Rule of Interpretation 3(b) provides, in part, that composite goods made up of different components, that cannot be classified pursuant to GRI 3(a), “shall be classified as if they consisted of thecomponent which gives them their essential character, insofar as this criterion is applicable.” The GRI do not provide a definition for the phrase “essential character,” but the EN’s suggest an illustrative list of factors to consider. Explanatory Note (VIII) to GRI 3(b), states that the factors which may be relevant to the determination of “essential character” “will vary between different kinds of goods,” but may include the nature of the material or component, its bulk, its quantity, its weight, its value or the role played by the constituent material in relation to the use of the good. General Rules for the Interpretation of the Harmonized System, Rule 3 (b) Explanatory Note (VIII).

It is the conclusion of the Customs Service that the component of the “Snack Kit” that affords the item its “essential character” is the travel bag component. The travel bag component has two separate pockets, the larger center pocket and the smaller side pocket. These pockets comprise the majority of the entire item. The pockets are where the majority of articles stored and transported by the “Snack Kit” will be carried.

The insulated beverage bag component, in comparison to the travel bag component, has a less significant role. The beverage bag component is capable of storing and transporting only one item, a single beverage. Although insulated, the insulation is not of a substantial nature.

The Customs Service, for the reasons previously stated, concludes that GRI 3(b), as employed through GRI 6 at this descriptive subheading level, enables classification of the “Snack Kit.” The component of the good that provides its essential character is the travel bag component. The “Snack Kit,” based on a comparison of the descriptive subheadings, is classified as a “Travel, sports and similar bag.”

Continuing the classification of the “Snack Kit,” the article is classified in subheading 4202.92.4500, HTSUSA. Subheading 4202.92.4500, HTSUSA, 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, insulated food or beverage 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 of mainly covered with such materials or with paper:

Other:
With outer surface of sheeting of plastic or of textile materials:

Travel, sports and similar bags:
4202.92.4500 Other.

CLASSIFICATION OF PLASTIC BOX AND INTERIOR TRAY

Commencing classification of the plastic box with the interior tray, the Customs Service again examined the headings of the tariff schedule. It is the conclusion of Customs that no single heading provides for the classification of both the plastic box and the interior tray. The box is classifiable in heading 3924, HTSUSA. Heading 3924, HTSUSA, provides for the classification of “Table, kitchenware, other household articles and toilet articles, of plastics.” The interior plastic tray is classifiable in heading 3926, HTSUSA. Heading 3926, HTSUSA, provides for the classification of “Other articles of plastics and articles of materials of headings 3901 to 3914.”

The plastic box and the interior plastic tray, pursuant to General Rule of Interpretation 3(b) is a composite good. The components of this item are adapted to one another, mutually complementary and together form a single article that would not normally be offered for sale individually. See General Rules for the Interpretation of the Harmonized System, Rule 3(b).

The component that provides the plastic box and interior plastic tray its essential character is the plastic box. The plastic box affords the item its greatest bulk, weight and value, and it stores the plastic tray.

Continuing the classification of the plastic box and interior plastic tray, the article is classified in subheading 3924.90.5500, HTSUSA. Subheading 3924.90.5500, HTSUSA, provides for:

Table, kitchenware, other household articles and toilet articles, of plastics:

Other:

3924.90.5500 Other.

HOLDING

The “Snack Kit” is classified in subheading 4202.92.4500, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty for the “Snack Kit” is twenty (20) percent ad valorem.

The plastic box and interior plastic tray are classified in subheading 3924.90.5500, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty for the plastic box and interior plastic tray is three and four-tenths (3.4) percent ad valorem.

Sincerely,

Miles B. Harmon, Acting Director
Commercial Rulings Division

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