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HQ 967177




July 22, 2004

CLA-2: RR:CR:TE: 967177 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Mr. Craig M. Schau
Menlo Worldwide Trade Services
6940 Engle Road
Suite A
Middleburg Heights, OH 44130

RE: The tariff classification of pizza delivery bag and pizza delivery bag with induction element

Dear Mr. Schau:

This is in response to your letter to the Bureau of Customs and Border Protection (CBP) National Commodity Specialist Division, received May 26, 2004, on behalf of your client, Vesture Corporation, in which you request the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of the Insulated Glow Pizza Delivery Bag (“pizza bag”), the Insulated Glow Pizza Delivery Bag with induction element (“pizza bag/induction element”), and the induction element alone.

Your letter was forwarded to this office for a response on the classification of the pizza bag and the pizza bag/induction element. The classification of the induction element alone will be separately addressed in a separate ruling.

FACTS:

The instant pizza bag is made in China. It measures approximately 18 inches by 18 inches by 7-1/4 inches. The bag is composed of a three layer construction, with an outer surface layer of a man-made fiber textile material backed with compact plastic sheeting, an approximately 0.5 inch thick middle layer of nonwoven fiber fill, and a bottom layer of man-made fiber textile fabric. The bag has a flap on its front-side that opens downward, allowing easy insertion and removal of pizzas. On the front (outside) of the flap is a flat clear plastic compartment that allows for insertion of paper sheets (orders, receipts, etc.). On the interior bottom, there is a compartment designed for insertion of the induction element, a patented heating device made in Taiwan that keeps the pizzas warm during transport. This compartment is separated from the main compartment by a wall of man-made fiber textile fabric with a hook and loop closure. The bag has 2 carrying straps attached to its sides that form an “X” shape by criss-crossing over the top of the bag, and a short strap on the center of its bottom. The bag appears capable of holding 3 or 4 large pizzas packaged in their individual boxes (in addition to the induction element).

You state that the pizza bags are sent to Taiwan after manufacture, where the induction element is inserted into them, and that they are then exported to the United States together. You nevertheless request classification for both the pizza bag and the pizza bag/induction element.

ISSUE:

What is the classification of the pizza bag and the pizza bag/induction element?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 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." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The pizza bag/induction element at issue essentially consists of components which together allow the user to deliver pizza and keep it hot, but which, if imported separately, would be classifiable under separate headings.

As the ruling regarding the classification of the induction element alone has not yet been issued because the article is still being reviewed, we cannot provide its classification at this time. However, we are certain that both components of the article (the pizza bag and the induction element) are classifiable under different headings. Since the components are classifiable in different headings, the complete good cannot be classified by reference to GRI 1. In pertinent part, GRI 2(b) states: “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.”

GRI 3(a) directs that the headings are regarded as equally specific when they each refer to part only of the materials contained in mixed or composite goods. We next look to GRI 3(b), which states in part that: “composite goods ... 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, insofar as this criterion is applicable.”

The applicability of GRI 3(b) is dependent upon whether the complete article is deemed to comprise a composite good. In pertinent part, EN IX to GRI 3(b) indicates that:

For 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.

In this instance, although the pizza bag and induction element are separable, the components are adapted one to the other and are mutually complementary. The pizza bag has a compartment expressly designed to hold the induction element. Furthermore, the pizza bag and the induction element are specifically designed to be used together so that pizzas remain hot during transport. As the pizza bag and induction element are fitted to each other and designed to be used with each other, we find that it is not likely that the pizza bag and induction element would normally be offered for sale separately. In light of the above, we find that the pizza bag/induction element constitute a composite good.

In order to determine the essential character of the composite article, we first look to EN VIII to GRI 3(b), which provides the following guidance:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In regard to the merchandise at hand, we find its primary use to be that of a pizza bag. Although the induction element provides an important feature (i.e., heating), the article’s principal function is conveyance of pizza. While the bag could be used without the induction element, we find it unlikely that the induction element would be used without some type of insulated bag. Therefore, we find that the pizza bag imparts the essential character to the composite article and that the pizza bag/induction element is classifiable in accordance with the pizza bag component.

The headings under consideration for classification of the pizza bag are heading 4202, HTSUSA, which (among other containers) provides for insulated food or beverage bags; heading 6305, which provides for sacks and bags of a kind used for packing of goods; and heading 6307, which provides for other made up articles. Heading 4202, HTSUSA, reads as follows:

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.

Pursuant to Presidential Proclamation 7515 of December 18, 2001, effective January 10, 2002, “insulated food or beverage bags” are now included in heading 4202, HTSUSA.

The EN to heading 42.02 states, in pertinent part, that the expression “insulated food or beverage bags” covers reusable insulated bags used to maintain the temperature of foods or beverages during transportation or temporary storage. However, we have previously ruled that heading 4202, HTSUSA, provides for, in part, “a variety of containers ranging from luggage to sports and travel bags, to fitted cases, and assorted similar articles. Its scope extends to various containers that are used to store and/or transport the belongings of an individual, as opposed to bulk goods or commercial goods.” (Emphasis added). (See Headquarters Ruling Letter (HQ) 954072, dated September 2, 1993). The instant pizza bag will be used solely in a commercial nature, in conveying product directly from seller to customer. Therefore, we find that it is not classifiable in heading 4202, HTSUSA.

Heading 6305, HTSUSA, covers textile sacks and bags, of a kind used for the packing of goods. The EN to heading 63.05 states, in pertinent part, that:

This heading covers textile sacks and bags of a kind normally used for the packing of goods for transport, storage or sale.

These articles, which vary in size and shape, include in particular flexible intermediate bulk containers, coal, grain, flour, potato, coffee or similar sacks, mail bags, and small bags of the kind used for sending samples of merchandise by post. The heading also includes such articles as tea sachets.

It is clear that the articles listed under heading 6305, HTSUSA, are of the type used for commercial merchandise being transported or stored for sale, usually in bulk (See, e.g., HQ 955639, dated April 5, 1994 and HQ 089444, dated September 3, 1991). In contrast, the pizza delivery bag is used for the conveyance of consumer merchandise. It is designed to hold just a few pizzas, not bulk quantities of goods. Furthermore, the bag is used for conveyance, not merely the packing, of the pizzas. Therefore, we find that the pizza bag is not classifiable in heading 6305, HTSUSA.

Heading 6307, HTSUSA, provides for: “Other made up articles, including dress patterns.” In HQ 962029 and HQ 962406, both dated July 22, 1999, we classified a “pizza delivery pouch” and a “pizza delivery bag,” respectively, in heading 6307, HTSUSA. Both of those items were soft-sided insulated textile containers designed for the commercial conveyance of pizza. In both rulings, we noted that while similar pizza pouches/bags of plastic are classifiable in heading 3923, which covers, among other goods, “Articles for the conveyance or packing of goods, of plastics ,” textile pizza delivery pouches/bags are classifiable in heading 6307, HTSUSA, as there is no parallel provision to heading 3923 in Section XI for articles for the “conveyance” of goods. We find that the instant pizza bag is substantially similar to the items that were the subjects of HQ 962029 and HQ 962406. Accordingly, we find that the instant pizza bag is also classified in heading 6307, HTSUSA.

HOLDING:

The pizza bag identified as the Insulated Glow Pizza Delivery Bag, and the pizza bag/induction element are both classified in subheading 6307.90.9889, HTSUSA, which provides for other made up [textile] articles, other. The general column one rate of duty is 7% ad valorem.

Sincerely,

Myles B. Harmon, Director

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