OT:RR:CTF:CPMM H304836 KSG
Craig M. Schau
Menlo Worldwide Trade Services
6940 Engle Road
Suite A
Middleburg Heights, OH 44130
Jennifer Darrow
2707 Butterfield Road
Oak Brook IL 60523
Debbie Brule
Jacobson Global Logistics Inc.
18209 80th Avenue South, Suite A
Kent WA 98032
Jane Taeger
Samuel Shapiro & Company, Inc.
One Charles Center
100 North Charles Street
Suite 1200
Baltimore MD 21201
RE: Revocation of HQ 967177, NY N020627, NY N243289, NY N261656 and NY N260407; tariff classification of insulated pizza, grocery and food delivery bags
Dear Mr. Schau, Ms. Darrow, Ms. Brule and Ms. Taeger:
This letter is in reference to Headquarters Ruling Letter ("HQ") 967177, dated
July 22, 2004, New York Ruling Letter (NY) N020627, dated December 11, 2007,
NY N243289, dated July 16, 2013, NY N261656, dated March 11, 2015, and NY N260407, dated January 21, 2015, regarding the tariff classification of insulated pizza, grocery and food delivery bags in the Harmonized Tariff Schedule of the United States (HTSUS).
In HQ 967177, U.S. Customs & Border Protection (CBP) classified three layer pizza delivery bags with an outer surface layer of man-made fiber textile material in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other.”
In NY N020627, CBP classified pizza delivery bags made of woven nylon fabric with polyester fiber fill in subheading 6307.90.98, HTSUS.
In NY N243289, CBP classified insulated grocery bags in subheading 3923.29.00, HTSUS, which provides for "articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of other plastics."
In NY N261656, CBP classified vinyl insulated food delivery bags in subheading 3923.10.90, HTSUS, which provides for " articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Boxes, cases, crates and similar articles; Other."
In NY N260407, CBP classified three different insulated food delivery bags: an insulated bag used to carry prepared foods; an insulated bag used to carry prepared deli trays; and an insulated bag used to carry up to two pizzas. The three bags were classified in heading 6307, HTSUS, as other made up articles.
We have reviewed HQ 967177, NY N020627, NY N243289, NY N261656, and NY N260407 and determined that the rulings are in error. Accordingly, for the reasons set forth below, CBP is revoking HQ 967177, NY N020627, NY N243289, NY N261656, and NY N260407.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke HQ 967177, NY N020627, NY N243289, NY N261656 and NY N260407 was published on July 22, 2020, in Volume 54, Number 28 of the Customs Bulletin. One comment was received in response to this notice, which is addressed below.
FACTS:
The pizza delivery bag at issue in HQ 967177 is composed of a three layer construction, with an outer surface 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 textile fabric. The bag has a flap on its front-side. On the interior bottom, there is a compartment designed for insertion of an induction element. The bag measures 18" x 18" x 71/4".
The pizza delivery bag at issue in NY N020627 is made of woven nylon fabric with polyester fiber fill. It measures 16" x 16"x 4".
The insulated grocery bag at issue in NY N243289 is described as a bag to be used for home delivery of grocery products. An insert called a "Space Bag" made of expanded polyethylene foam sandwiched between two layers of metalized polyethylene terephthalate maintains the temperature of refrigerated or frozen products. It measures 14" x 19.25" x 7.75".
NY N261656 involves both insulated food delivery bags and insulated pizza delivery bags. The food delivery bag has an outer surface of blue vinyl sheet, nylon webbing carrying handles and a zipper. It is insulated with 1" thick polyurethane foam and lined with woven polyester textile. It measures 22" x 13" x 13". The insulated pizza delivery bag has an outer surface of red vinyl sheet, insulated with 1" thick polyurethane foam and is lined with woven polyester textile. The insulated pizza delivery bag has grommets around the narrow side for ventilation. It measures 20" x 20"x 12".
In NY N260407, CBP classified three different insulated food delivery bags. The first insulated bag is used to carry prepared foods; it can carry four steam table pans. It measures 22" x 13" x 13" and is made of three layers- an outer nylon layer, a polyurethane foam insulation layer and on the inside, a polyester fabric layer. The second insulated bag carries prepared deli trays. It measures 18" x 18" x 5" and has three layers with a foam insulation layer in the middle like the first bag. The third insulated bag is used to carry up to two pizzas, measures 18" x 18" 5" and also has t three layers with foam insulation in the middle layer. The three bags were classified in heading 6307, HTSUS, as other made up textile articles.
ISSUE:
Whether the insulated pizza, food and grocery delivery bags are properly classified in heading 4202, HTSUS, as insulated food or beverage bags, in heading 3923, HTSUS, as articles for the conveyance or packing of goods, of plastics; or in heading 6307, HTSUS, as "Other made up articles, including dress patterns.”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative section and chapter notes also apply, unless the context otherwise requires.
The HTSUS subheadings under consideration are the following:
3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:
3923.10 Boxes, cases, crates and similar articles:
3923.10.90 Other
4202 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:
Other:
4202.92 With outer surface of sheeting of plastics or of textile materials:
Insulated food or beverage bags:
With outer surface of textile materials:
4202.92.08 Other
6307 Other made up articles, including dress patterns:
6307.90 Other:
6307.90.98 Other
In understanding the language of the HTSUS, the Explanatory Notes (EN's) of the Harmonized Commodity Description and Coding System, constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN's provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN for heading 4202 states that "the expression 'insulated food or beverage bags' covers reusable insulated bags used to maintain the temperature of foods and beverages during transport or temporary storage."
In HQ 953458, dated April 16, 1993, a soft-sided insulated cooler/picnic bag was classified in heading 4202, HTSUS, as a "travel, sports and similar bag." CBP cited to Additional U.S. Note 1, Chapter 42, HTSUS, which described travel, sports and similar bags as of a kind designed for carrying clothing, other personal effects during travel, including backpacks and shopping bags of the heading. CBP compared the soft-sided cooler bag to a backpack and determined that both were used to transport food (whether perishable or not) during travel and therefore, the cooler bag was considered a similar bag used to carry "other personal effects." HQ 954072, dated September 2, 1993, also classified a soft-sided cooler bag in heading 4202, HTSUS, as a bag used to carry personal effects. HQ 962406, dated July 22, 1999, and HQ 962029, dated July 22, 1999, classified insulated pizza delivery bags in heading 6307, HTSUS as other made of articles. Other rulings such as HQ 965104, dated February 12, 2002, classified insulated food delivery bags in heading 3923, HTSUS.
When these rulings were written, which was prior to 2003, heading 4202 did not have language in it specifying that insulated food and beverage delivery bags were specifically included in heading 4202.
In 2003, the language of heading 4202, HTSUS, was amended by statute to specifically include insulated food or beverage bags. Since language was specifically included in 2003 to include insulated food or beverage bags, CBP rulings from 2003 on properly classify insulated food or beverage bags in heading 4202, HTSUS.
We note that as a result of the addition of the statutory language to heading 4202 in 2003, HQ 953458, HQ 954072 and any other pre-2003 rulings that classified soft-sided food and pizza delivery bags outside of heading 4202 are revoked by operation of law.
The pizza delivery bags, food delivery bags and grocery delivery bags at issue are reusable, are insulated, and are designed precisely to maintain the temperature of food and beverages during transport. Based on the addition of 2003 statutory language including insulated food or beverage bags in heading 4202, the insulated pizza delivery, food delivery and grocery bags made of textile materials in HQ 967177, NY N020627, NY N243289, NY N261656, and NY N260407 are classified in heading 4202, HTSUS, based on the eo nomine provision. The language from the EN for heading 4202 states that reusable insulated bags used to maintain the temperature of foods and beverages during transport or temporary storage are classified in heading 4202. In accordance with GRI 6, insulated pizza delivery bags, food delivery bags and grocery bags are classified in subheading 4202.92.08, HTSUS.
As noted above, we received one comment in response to the notice of the proposed revocation. The commenter agrees with the conclusion but argues that CBP should use GRI 3(a) to reach a conclusion. This is incorrect. As stated above, the language within heading 4202 specifically includes insulated food delivery bags. Therefore, it is appropriate to classify these articles in accordance with GRI 1.
HOLDING:
Pursuant to GRIs 1 and 6, insulated pizza delivery bags, food delivery bags and grocery bags are classified in subheading 4202.92.08, HTSUS. The column one, general rate of duty is 7% ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
HQ 967177, NY N020627, NY N243289, NY N261656, and NY N260407 are revoked.
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division