CLA-2 RR:CR:TE 961947 SS
Catherine L. Holmes, Attorney-in-Fact
The A.W. Fenton Company, Inc.
1157 Rarig Avenue
Columbus, OH 43219-2357
Re: Diaper Bag; Cosmetic Bag; 4202.92.4500, HTSUSA; SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997); Primarily Designed for Carrying Personal Effects During Travel; Not Primarily Designed for the Storage of Food and Beverages
Dear Ms. Holmes:
This letter is in response to your request dated May 19, 1998, on behalf of your client Ross Products Div., Abbott Laboratories Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a deluxe diaper bag and a cosmetic bag made in China. A sample of each was submitted with your request.
It appears that the National Import Specialist agreed to add an additional diaper bag, identified as style # 18947, to the ruling request on June 3, 1998. However, we have located Port Ruling (PD) C88173, dated June 16, 1998, which appears to classify style #18947. Since style #18947 is already the subject of a binding ruling, we decline to address style #18947 in this ruling.
FACTS:
One of the submitted samples is described as a “Vinyl Lined Deluxe Diaper bag” and identified as style #52004. The Deluxe Diaper bag consists of a diaper bag and a changing pad. The diaper bag is composed of an exterior layer of polyvinyl chloride (PVC) compact plastic sheeting, a middle layer of polyurethane foam approximately 1/4 inch thick and an interior layer of vinyl. The exterior layer of PVC is printed with an infant/teddy bear design. The diaper bag is rectangular in shape and measures approximately 15 inches long by 11 inches high by 4-3/4 inches wide. The diaper bag has double woven textile handles and an adjustable woven textile shoulder strap. The top of the diaper
bag has a nylon zippered closure. One exterior side has a full length pocket with a hook and loop closure. The opposite exterior side has a rectangular shaped zippered storage pocket. Both end
panels have exterior elastic gathered pockets. The interior of the bag has a flat pocket against one of the walls consisting of clear PVC sheeting with a hook and loop closure. The bag has a bottom stiffener made of cardboard covered with PVC sheeting which the submission suggests is intended to hold the shape of the bag and prevent it from collapsing. The bag is commonly known as a “diaper bag” or “baby bag” and is intended to hold incidental baby needs such as a change of clothing, extra diapers, baby powder, tee shirts, bottles or other snacks. The bag contains a removable changing pad, measuring approximately 12 inches by 25 inches, made of 1/4 inch thick foam covered with PVC sheeting. The changing pad is used to provide a clean, washable surface on which an infant’s diaper can be changed.
The other sample submitted is described as a “Vinyl Cosmetic Bag” and is identified as style # 18452. The bag is approximately 6 inches long by 7-1/2 inches high by 3 inches wide. It appears to be slightly wider at the bottom than the top. One side of the cosmetic bag is composed of clear PVC plastic sheeting while the remaining sides are composed of the same infant/teddy bear printed PVC plastic sheeting as the diaper bag described above. It has a nylon coil zipper closure that extends from approximately the middle of one side panel, over the top of the bag, to the middle of the other side panel. The cosmetic bag also has a vinyl wrist strap and matching trim. The submission indicates that the bag is intended to keep small baby items such as pacifiers, nail clippers, nipples, and other accessories intact and in a separate area from the main diaper bag.
ISSUE:
I. What is the proper classification for the “Vinyl Lined Deluxe Diaper bag”?
II. What is the proper classification for the “Vinyl Cosmetic bag”?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Scehdule of the United States (HTSUS) is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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.
I. Diaper Bags
Historically, diaper bags have been classified under heading 4202, HTSUS. See Headquarters Ruling Letter (HQ) 084010, dated June 6, 1989; HQ 084419, dated July 26, 1989; New York Ruling Letter (NY) 869276, dated December 18, 1991; NY 869144, dated December 18, 1991; NY 870762, dated February 6, 1992; NY 800335, dated August 1, 1994; NY 813873, dated September 12, 1995; NY B87196, dated July 22, 1997; NY C85883, dated April 17, 1998; NY C85935, dated April 17, 1998; Port Ruling Letter (PD) C82511, dated December 24, 1997; and PD C84672, dated February 23, 1998. Heading 4202, HTSUS provides for, inter alia, travel, sports and similar bags. Additional U.S. Note 1 to Chapter 42 states that for the purposes of heading 4202, HTSUS, the expression “travel, sports and similar bags” refers to goods of a kind designed for carrying clothing and other personal effects during travel. We have held that relatively minor journeys, such as commutes to work, constitute travel. HQ 955660, dated September 24, 1994. Since the diaper bag is designed to contain baby clothing and personal effects during travel, it is ejusdem generis with the exemplars of heading 4202, HTSUS. The appropriate subheading for goods under this heading is determined by the material of the outer surface. Since the outer surface of the merchandise is of PVC plastic sheeting, the applicable subheading will be 4202.92.4500, HTSUS, which provides for travel, sports and similar bags, with outer surface of sheeting of plastic.
This matter was forwarded to Headquarters due to concern over the possible application of SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997), a recent court case involving the classification of portable, soft-sided, insulated cooler bags with outer surface of plastics. The Court of Appeals for the Fourth Circuit (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.” It is Customs position that the diaper bag at issue is not similar to the cooler bags ruled on in SGI. The SGI cooler bags were found to be primarily designed and chiefly used for the storage and preservation of food or beverages. In contrast, the diaper bag is primarily designed and chiefly used to contain clothing and other personal accessories during travel. It is not primarily designed nor chiefly used for the storage of food or beverages and, thus, remains classified in Chapter 42, HTSUS.
Next, we consider the fact that the diaper bag contains a changing pad. The changing pad is classified under 3926.90.9890, HTSUSA, as an other article of plastic. See NY 869276 and NY 869144. The previous rulings covering diaper bags with changing pads tend to classifying the diaper bags under heading 4202, HTSUS, without mentioning a separate classification for the changing pad. See NY 813873, PD C84672, PD C82511, and NY B87196. Some of the rulings classify the changing pad with the diaper bag when imported together, but none of the rulings address the legal basis for classifying the articles as a set. See HQ 084419, NY 869144, NY 869276, NY C85883. This ruling serves to address that issue.
Since the Vinyl Deluxe Diaper bag consists of both a diaper bag and a changing pad, both heading 4202, HTSUS, and heading 3926, HTSUS, are applicable. The GRIs direct 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 may then be applied. Since GRI 1 alone is not determinative of the article’s classification because the Vinyl Deluxe Diaper bag falls under two or more headings, we consider GRI 2. GRI 2(b) mandates that the classification of goods consisting of more than one material or substance shall be determined according to the principles of GRI 3. GRI 3 establishes a hierarchy of methods of classifying goods which fall under two or more headings. The first method of classification is provided in GRI 3(a), under which the heading which provides the most specific description is to be preferred to a heading which provides a more general description. Explanatory Note III to Rule 3(a). However, when two headings each refer to part only of the items in a set put up for retail sale, 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 than the other. Explanatory Note V to Rule 3(a). In such circumstances, the classification of such goods shall be determined by GRI 3(b) or (c). Accordingly, we first apply GRI 3(b) to the present case.
GRI 3(b) provides that “goods put up in sets for retail sale” are to be classified according to the component which can be regarded as conferring on the set as a whole its essential character. Explanatory Note VII to Rule 3(b). The EN state in Note X to Rule 3(b) that the term “goods put up in sets for retail sale” means goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity: and
(c) are put up in a manner suitable for sale directly to the users without repacking.
The subject diaper bags with changing pads meets criteria (a), (b) and (c) above. Both items aid in caring for an infant while away from the home. As imported, the bag and pad are put up in a manner suitable for retail sale to the consumer without any need for repacking. With the above elements satisfied, the essential character of the set must be determined to allow for proper classification. In general, “essential character” has been construed to mean the attribute which strongly marks or serves to distinguish an article. It may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods. In this case, the diaper bag facilitates the transportation of items needed to care for a baby from one location to another. Its role in relation to the overall use of the goods is paramount. Consequently, the diaper bag represents the essential character of the set. The set as a whole, therefore is classifiable in heading 4202, HTSUS.
II. Cosmetic Bags
We are unable to issue a ruling letter at this time because the issue of classification of “cosmetic bags” is currently before the Court of International Trade. Under Section 177.7(b) of the Customs Regulations (19 C.F.R. 177.7(b)), this office is precluded from issuing rulings which involve issues currently pending before the court. When the court has reached a decision in this related case, you may resubmit your request for a binding ruling.
HOLDING:
The Vinyl Lined Deluxe Diaper Bag is classified in subheading 4202.92.4500, HTSUSA, the provision for “ Trunks, suitcases, vanity cases . . . and similar bags . . . : Other: With outer surface
of sheeting of plastic . . . : Travel, sports and similar bags: Other.” The general column one duty rate is twenty percent (20%) ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division