United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2005 HQ Rulings > HQ 563295 - HQ 966997 > HQ 966919

Previous Ruling Next Ruling
HQ 966919




February 28, 2005

CLA-2: RR:CR:TE: 966919 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Port Director
P.O. Box 3130
Laredo, Texas 78044-3130

RE: Internal Advice; Classification of an Insulated Beverage Holder; Heading 5906, HTSUSA; Cellular Material and Textile Fabric; Heading 6307, HTSUSA; Other Made Up Textile Article

Dear Sir:

This is in reply to your memorandum dated January 9, 2004, forwarding a request for internal advice dated October 25, 2003, mailed November 28, 2003, and received by Customs and Border Protection (CBP) on December 10, 2003, from R.L. Pohler & Co. Customhouse Broker, on behalf of Border Promotional Products, Inc. (hereinafter Border or requester), on the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of an insulated beverage holder. Your memorandum and a sample was received by this office on February 24, 2004.

FACTS:

The submitted sample is a cylindrical shaped insulated beverage holder, which is described as a "cuzzy". It is made of three layers of material. The outer layer consists of a knit fabric. The middle layer appears to be of cellular material and functions as an insulating and cushioning material. The final layer, which forms the interior of the holder appears to be a knit fabric. The three layered material is folded and sewn closed on two sides. The bottom of the material is cut on each side to allow the bottom to conform to the bottom of a container. The holders are imported from China and sent in-bond to Mexico where they are silk screened with company names and/or logos. After silk screening, the products are reimported into the United States.

A shipment of the subject insulated beverage holders was entered on July 7, 2003. When originally entered they were classified under subheading 4202.92.1000, HTSUSA, as insulated food or beverage bags, with a duty rate of 3.4 percent ad valorem. A request for information was sent on July 28, 2003. On August 7, 2003, CBP mailed a Notice of Action with regard to the July 7, 2003, shipment advising that the insulated beverage holders were classified under subheading 6307.90.9889, HTSUSA, as made up articles of textile material, and that the holders were rate advanced to 7 percent. Subsequent entries were also rate advanced.

ISSUE:

What is the proper classification of the subject insulated beverage holder.

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. 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 material used in the item before us is a combination of knit textile material and a cellular material that appears to be rubber or plastic. The inner core of the material appears to be rubber or plastic to which textile has been adhered on both sides. Chapter 39 covers plastics and articles thereof; Chapter 40, HTSUSA, covers rubber and articles thereof; and Chapter 59, HTSUSA, which covers impregnated, coated, covered or laminated textile fabrics. We must therefore determine whether the combination material is considered of plastic, rubber, or textile for classification purposes.

Notes 1(h) and (ij) to Section XI, provide, among other things, that the section does not cover knit fabrics impregnated, coated, covered or laminated with plastics or with rubber, or articles thereof, of Chapters 39 or 40, respectively. Thus, it is necessary to determine whether the beverage holder, if made of cellular plastic combined with textile
fabrics, is an article of Chapter 39 or if made of cellular rubber combined with textile fabrics, is an article of Chapter 40.

Note 2(m) to Chapter 39 states that the chapter does not cover goods of Section XI (textiles and textile articles). The Explanatory Notes to Chapter 39 state that the classification of plastic and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.

The ENs to Chapter 39 state that the following plastic and textile combination products are covered by Chapter 39:

(a) Felt impregnated, coated, covered or laminated with plastics, containing 50% or less by weight of textile material or felt completely embedded in plastics;

(b) Textile fabrics and nonwovens, either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of colour;

(c) Textile fabrics, impregnated, coated, covered or laminated with plastics, which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30° C;

(d) Plates, sheets and strip of cellular plastics combined with textile fabrics (as defined in Note 1 to Chapter 59), felt or nonwovens, where the textile is present merely for reinforcing purposes.

In this respect, unfigured, unbleached, bleached or uniformly dyed textile fabrics, felt or nonwovens, when applied to one face only of these plates, sheets or strip, are regarded as serving merely for reinforcing purposes. Figured, printed or more elaborately worked textiles (e.g., by raising) and special products, are regarded as having a function beyond that of mere reinforcement.

Plates, sheets and strips of cellular plastics combined with textile fabrics on both faces, whatever the nature of the fabric, are excluded from this Chapter.

Inasmuch as the cellular plastic is combined with textile fabric on both sides, it is excluded from Chapter 39. Next, the governing notes direct us to Note 3 to Chapter 56. Note 3 states that Headings 5602 and 5603 cover felts and nonwovens, respectively, that are coated, covered, impregnated or laminated with plastics or rubber. Since the
material at issue does not involve felt or nonwoven material, Note 3, Chapter 56, is inapplicable.

Note 2(a) to Chapter 59 states that Heading 5903, HTSUS, applies to textile fabrics, impregnated, coated, covered, or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular) other than the following six exceptions:

(1) Fabrics in which the impregnation, coating or covering cannot be seen with the naked eye (usually chapters 50 to 55, 58 or 60); for the purpose of this provision, no account should be taken of any resulting change of color;

(2) Products which cannot, without fracturing, be bent manually around a cylinder of a diameter of 7 mm, at a temperature between 15°C and 30°C (usually Chapter 39);

(3) Products in which the textile fabric is either completely embedded in plastics or entirely coated or covered on both sides with such material, provided that such coating or covering can be seen with the naked eye with no account being taken of any resulting change of color (chapter 39);

(4) Fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments (usually chapters 50 to 55, 58 or 60);

(5) Plates, sheets or strip of cellular plastics, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (Chapter 39); or

(6) Textile products of heading 5811.

Only Note 2 (a)(5) may be applicable to the sample before us. However, CBP believes that the textile fabric is present for more than mere reinforcement. The textile fabric provides a protective cover for both sides of the cellular material. The textile fabric gives the item a different visual appearance and tactile quality, and enhances the marketability of the product-especially as it allows it to be printed. In addition, when the material is made into the beverage holder, the textile fabric helps keep the outside, and thus one's hand, dry. Accordingly, the subject knit material is not described by the above exceptions.

Chapter 40, HTSUSA, covers rubber and articles thereof. Note 2(a) of Chapter 40 states the chapter does not cover goods of Section XI (textiles and textile articles). The General EN to Chapter 40 states that the classification of rubber and textile combinations is essentially governed by Note 1(ij) to Section XI, Note 3 to Chapter 56, and Note 4 to Chapter 59, HTSUSA.

Note 4 to Chapter 59, HTSUSA, states that for the purposes of heading 5906, HTSUSA, which covers rubberized textile fabrics, the expression “rubberized textile fabrics” means:

(a) Textile fabrics impregnated, coated, covered or laminated with rubber:

(i) Weighing not more than 1,500 g/m2; or

(ii) Weighing more than 1,500 g/m2 and containing more than 50 percent by weight of textile material;

(b) Fabrics made from yarn, strip or the like, impregnated, coated, covered or sheathed with rubber, of heading 5604; and

(c) Fabrics composed of parallel textile yarns agglomerated with rubber, irrespective of their weight per square meter.

In reference to the scope of heading 5906, HTSUSA, Note 4 to Chapter 59 also explains that:

This heading does not, however, apply to plates, sheets or strip of cellular rubber, combined with textile fabric, where the textile fabric is present merely for reinforcing purposes (chapter 40), or textile products of heading 5811.

Heading 4008 covers "(p)lates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber". The EN to heading 4008 states, in relevant part, at (A), "(p)lates, sheets and strips of cellular rubber combined with textile fabric on both faces, whatever the nature of the fabric, are excluded from this heading (heading 56.02, 56.03 or 59.06).

Based on the above, the material from which the beverage holder is made is excluded from classification in Chapters 39 and 40, due to the presence of fabric on both sides of the plastic or rubber sheeting material.

Accordingly, the material of which the cuzzy is made is considered to be either a “rubberized textile fabric” classifiable in heading 5906, HTSUSA, or a fabric of heading 5903, HTSUSA. Since headings 5906 and 5903, HTSUSA, are within the textile section of the HTSUSA, for classification purposes under the HTSUSA, articles made of this material would be considered to be articles of textiles.

Therefore whether the insulated cellular material is of rubber or of plastics, the combination of the cellular material covered on both sides with textile fabric is in all cases considered to be a textile material.

Accordingly the article before us is made of a textile material. We must now determine the proper classification of the beverage holder.

Heading 4202 provides for:

Trunks, suitcases, vanity cases, attaché 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.

The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. It goes on to state that "the expression 'insulated food or beverage bags' covers reusable insulated bags used to maintain the temperature of foods and beverages during transportation or temporary storage." However, we note that "beverage holder" or "cuzzy" is not specifically named in heading 4202, HTSUSA. Accordingly, we must determine whether the subject holder is similar to the containers specified in 4202. In order to classify the subject goods as "similar" under 4202, HTSUSA, we must look to factors which would identify the merchandise as being ejusdem generis (of a similar kind) to those specified in the provision.

In the case of Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867 (1994), aff’d. 69 F. 3d 495 (1995), the Court of Appeals for the Federal Circuit stated as follows:

As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.

In classifying goods under the residual provision of "similar containers" of 4202, HTSUSA, the Court of Appeals affirmed the trial court’s decision and found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, HTSUSA, i.e., "to organize, store, protect and carry various items." The instant insulated beverage holder is designed to maintain the temperature of a canned or bottled beverage while drinking its contents, not while in storage or during transportation. We note additionally that it does not entirely enclose the can or bottle it holds. It therefore does not meet the description of an “insulated food or beverage bag” provided for in the EN. The instant cuzzy does not have the same essential
characteristics, i.e., to organize, store, protect and carry items, as the containers listed in heading 4202, HTSUS. Thus, it is therefore our determination that the subject beverage holder is not ejusdem generis to "insulated food or beverage bags" of heading 4202, HTSUS. It is therefore not classifiable in heading 4202, HTSUS.

Heading 6307, HTSUSA, provides for, among other things, other made up articles. The EN to heading 6307, HTSUSA, state:

This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

In New York Ruling Letter (NY) NY G87461, dated March 2, 2001, we classified an insulated beverage wrap with a bottom panel featuring an opening on either side in heading 6307, HTSUS. In NY G83570, dated November 7, 2000, we classified can wraps, made of neoprene rubber laminated on the outer surface with knit fabric, identified as coozys, in heading 6307, HTSUS. As the instant beverage holder is not more specifically provided for elsewhere in the tariff and is substantially similar to the items that were the subjects of NY G87461 and NY G83570, we find that it is also classified in heading 6307, HTSUS.

HOLDING:

The beverage wrap (cuzzy) is 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.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director Commercial Rulings Division

Previous Ruling Next Ruling

See also: