CLA-2 RR:CR:GC 962655 JGB
Ms. Wendy H. Pate
C. H. Robinson, International, Inc.
1640 Phoenix Boulevard, Suite 260
College Park, GA 30349-5563
RE: Water Bottle With Carrying Bag, In Zone Products, Inc.
Dear Ms. Pate:
This is in response to your request of February 1, 1999, to the Customs National Commodity Specialist Division, New York, on behalf of In Zone Products, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a plastic water bottle imported and sold within a fitted, carrier bag. The article is expected to be manufactured in China and/or Taiwan. A sample was submitted with your request. The letter was referred to this office for reply. We regret the delay.
FACTS:
The merchandise is described as a cylindrical-shaped, polypropylene sports bottle imported and sold within a fitted, carrier bag. The bottle measures approximately 9½ inches in height by approximately 3¼ inches in diameter, is constructed of plastic, and features a threaded cap in the shape of a sports ball, in this instance, a soccer ball. On the top of the lid is a valve which when raised allows liquid to be dispensed, and when lowered seals the contents within. The carrier is a sheath or holster type article with a zipper opening and an adjustable webbed strap. The strap appears to be a shoulder strap, based on the orientation of the stitching, which causes the strap to lie flat when worn over or across the shoulder.
The fitted bag is constructed of a "vylon", a synthetic nylon, and vinyl. On the outside of the cover is a small, zippered compartment which can hold change, keys, or other small effects. The carrier bag is made of a textile backed polyvinyl chloride (PVC) exterior, a middle layer of 1/16th inch foamed plastic, and a PVC lining. The textile backed PVC exterior consists of a layer of woven nylon fabric with a layer of compact embossed PVC. The bottle represents 70 percent of the value of the goods.
ISSUE:
Whether the bottle with carrier bag is classified under heading 3923, HTSUS, as plastic articles for the conveyance or packing of goods, under 3924, HTSUS, as other household articles of plastics, under heading 3926, HTSUS, as other articles of plastics, or under heading 4202, HTSUS, as bottle cases or similar containers of textile materials.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
The articles consist of two components which together provide a user convenient access to liquids, but which, if imported separately, would be classifiable under separate headings, i.e., heading 4202, HTSUS, and one of the headings under chapter 39, HTSUS. Therefore, the articles are not described by a single heading. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, in pertinent part, “When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:...when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ... those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.” GRI 3(b) provides that “... composite goods consisting of different materials or made up of different components, 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 EN to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods. In this instance, the plastic bottle is the primary component of the composite good which permits it to perform its primary function of carrying and dispensing a beverage, while the nylon carrier serves a secondary function of facilitating convenient carrying of the article. The function of the two components together is to keep liquids easily available to the user. The carrier in this instance adds to the convenience of the main article. Because the bottle component supplies the essential character of the good, the classification of the bottle will govern the classification of the whole good.
Since the component which contains and supplies the liquid is an article of plastics, we look to chapter 39, HTSUS, which covers “plastics and articles thereof.”
If heading 3923, HTSUS, is inapplicable, heading 3924, HTSUS, the provision for ". . . other household articles of plastics" merits consideration. If both of these provisions fail, the residual provision, heading 3926, HTSUS, other articles of plastics, would apply. Within heading 3923, subheading 3923.30.00, HTSUS, provides for “Carboys, bottles, flasks and similar articles.” In HQ 952264, issued November 25, 1992, we concluded that the bottles classified in that subheading “are bottles such as beverage bottles which are designed to be filled and sold to the ultimate consumer with a beverage therein. They are not containers to be filled by the end user.” This determination was based on our consideration of EN 39.23, which states that the heading “covers all articles of plastics commonly used for the packing or conveyance of all kinds of products.” The reference to products carries the meaning of commercial products which would not be used with the bottle under consideration here. If the bottle were used to sell shampoo or bleach, it might qualify for classification in heading 3923; however, inasmuch as it is expected to be used to hold a product of the user’s personal choice, it is precluded from classification here. See, e.g., HQ 955047, issued October 6, 1994.
With respect to the classification in heading 3924, HTSUS, the issue of classification of certain containers -- portable, soft-sided, insulated cooler bags with outer surface of plastics -- was examined by the Court of Appeals for the Federal Circuit (CAFC) in SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997). The CAFC focused on whether food or beverages were involved with the eo nomine exemplars set forth in the tariff provisions at issue and, without discussion of heading 4202 exemplars of goods that organize, store, protect, and/or carry food or beverages, the CAFC held that the appropriate classification for the cooler bags was subheading 3924.10.50, HTSUS, the provision for “Tableware, kitchenware, other household articles...of plastics: Tableware and kitchenware: Other.” The Court stated that this classification “does encompass exemplars that are ejusdem generis with the coolers because their purpose is to contain food and beverages.”
This office concluded that the CAFC’s decision in SGI should be implemented. Instructions were issued to Customs field personnel on March 18, 1998 (and approved for dissemination to members of the importing community), by which the principles of the CAFC’s decision were expressly extended to portable, hard or soft-sided, insulated coolers and similar insulated containers with outer surface of plastics or with outer surface of textile materials. The instructions also stated that the classification of bottle cases, insulated bottle bags, and similar containers (if designed to contain only one bottle or similar single unit of a beverage, regardless of the unit’s capacity) was unaffected by SGI. A bottle case, as noted above, is an exemplar container of heading 4202 and, unlike the articles before the Court in SGI, is not designed to contain food or multiple beverages.
The carrier bag with its bottle is not similar to the soft-sided, insulated cooler bags at issue in SGI, nor to other household articles of plastics classifiable under heading 3924. Standing alone, the carrier component is somewhat similar to a sheath in the manner that its main compartment is form-fitted. The fact that the carrier is designed to transport a plastic bottle filled with a single beverage also renders the carrier component somewhat similar to a bottle bag. The article has a carrier component with an additional small pocket in which various items may be carried -- a characteristic of containers such as backpacks classifiable in heading 4202, HTSUS. Although the carrier component of the two articles together bears some similarity to a container of heading 4202, the design, features, and use of the complete article is principally related to providing a beverage while attending or participating in a sporting event. Although the article may have the character of a container, it is not similar to those enumerated in heading 4202. Despite the presence of a relatively small pocket, the article's essential character is imparted by the plastics component and its ability to store and efficiently provide liquid nourishment and/or refreshment.
Within the residual and prevailing heading 3926, HTSUS, the specific applicable subheading is 3926.90.9880, the provision for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other: Other.”
HOLDING:
The plastic bottle with carrier bag is classifiable at GRI 3(b) as a composite good in subheading 3926.90.9880, HTSUS, the provision for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other: Other.”
Sincerely,
John Durant, Director
Commercial Rulings Division