CLA-2 RR:CR:TE 964237 jsj
Mr. Daniel J. Gluck
Serko & Simon, L.L.P.
666 5th Avenue
16th Floor
New York, New York
10103
Re: “Cooler Carry-All”; Insulated Compartment and Non-Insulated Compartment; General Rule of Interpretation 3(b); Insulated Food or Beverage Bag; Travel, Sports and Similar Bags; Subheading 4202.92.0507 HTSUSA; HQ 964449 (Jan. 14, 2002) Distinguished.
Dear Mr. Gluck:
The purpose of this correspondence is to respond to your request dated April 7, 2000. The correspondence in issue requested, on the behalf of your client, California Innovations, Inc., a binding classification ruling concerning the merchandise described as a “Cooler Carry-All.”
This ruling is being issued subsequent to the following: (1) A review of your submission dated April 7, 2000; (2) An examination of the sample; and (3) A telephone conversation conducted on March 6, 2002, between you and a member of my staff. It is noted that your submission included sales literature for the “Samsonite 700 Series Silhouette 6 Cooler Carry-All”, information concerning “Microban” and a copy of the United States Patent and Trademark Office registration of “THERMA-FLECT.”
FACTS
The article in issue, identified as a “Cooler Carry-All,” is a bag that has an insulated cooler compartment permanently attached to a non-insulated, travel or sports bag compartment. The “Cooler Carry-All,” when fully extended, measures twenty-five (25) inches in length, ten (10) inches in height, and nine and one-half (9 ½) inches in width. The cooler compartment measures nine (9) inches in length and the travel or sports bag compartment measures sixteen (16) inches in length.
The cooler compartment, as Customs is advised by counsel, has “four distinct layers: A) a removable leak proof inner liner, B) a reflective barrier, C) high-density closed cell foam and D) a durable waterproof outer nylon shell.” The removable plastic liner secures to the “Cooler Carry-All” by means of a zipper. Customs is advised that the plastic liner of the cooler compartment will have an antibacterial protection identified as “Microban” incorporated into the plastic.
The foam insulation is one-fourth (1/4) of an inch in thickness. California Innovations has a trademark for “THERMA-FLECT” foam insulation registered with the United States Patent and Trademark Office.
The “Cooler Carry-All” is collapsible. It is designed so that both the cooler compartment and the travel or sports compartment may be used at the same time or that either compartment may be used individually. The cooler compartment collapses and secures by means of hook and loop fasteners. The travel or sports compartment secures while collapsed by means of a zipper.
The “Cooler Carry-All” travel or sports compartment features handles made of a fabric of man-made textile fibers. The handles loop from both sides of the bag and have a hook and loop fastener system that enables both handles to be secured together for transport. The entire bag has three metal rings, one on each end and one between the cooler and travel or sports compartments. The rings will be utilized with a shoulder strap composed of woven man-made textile material. The strap has spring-loaded fasteners on each end and a plastic guard for placement on the carrier’s shoulder. The placement of the metal rings on the bag enables the strap to be used when the cooler compartment is used, when the travel or sports compartment is used or when both compartments are used.
The bag has two pockets on the end on which the cooler compartment is located. One pocket is an open flat, mesh pocket that is four (4) inches in height and measures the same width as the bag. The other pocket is located between the mesh pocket and the cooler compartment. It is insulated with the same material that insulates the cooler compartment. The pocket is approximately the same width and height as the bag, but measures only approximately one and one-half (1 ½) inches in depth. It has a zipper closure.
The Customs Service is advised that the country of manufacture is China.
ISSUE
What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described “Cooler Carry-All” ?
LAW AND ANALYSIS
The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U.S. Rules of Interpretation.
General Rule of Interpretation 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.” General Rule of Interpretation 1. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).
The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUS. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F.3d 1098, 1109 (Fed. Cir. 1995).
Commencing classification of the “Cooler Carry-All,” in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4202, HTSUSA, provides for the classification of:
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. (Emphasis added).
“Traveling bags” and “sports bags” are defined in Additional U.S. Note 1 of Chapter 42, HTSUSA. Additional U.S. Note 1 provides, in part, that “travel, sports and similar bags” are “goods…of a kind designed for carrying clothing and other personal effects during travel….” Chapter 42, Additional U.S. Note 1. The Explanatory Notes define “sports bags” as including “articles such as golf bags, gym bags, tennis racket carrying bags, ski bags and fishing bags.” Explanatory Note 42.02. See also Totes, Inc. v. United States, 865 F. Supp. 867 (Ct. Int’l Trade 1994) (providing that articles designated eo nomine in heading 4202, HTSUSA, are designed to organize, store, protect and carry).
“[I]nsulated food or beverage bags” are not defined by the tariff schedule, but the Explanatory Notes do offer guidance. The EN’s to heading 4202, HTSUSA, state 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. Explanatory Note 42.02.
It is the conclusion of the Customs Service, based on the above discussion, that the “Cooler Carry-All” is designated eo nomine, that is by name, in heading 4202, HTSUSA. Customs, at this stage of the classification process, is not stating whether the item is a travel or sports bag or an insulated food or beverage bag. This is not initially necessary because pursuant to GRI 1, the initial step is to determine the correct classification “according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. Classifying the “Cooler Carry-All” pursuant to GRI 1, it is classified in heading 4202, HTSUSA.
Continuing the classification of the article at the subheading level, subheading 4202.92, HTSUSA, provides for: “…Other: With outer surface of sheeting of plastic or of textile materials.” The “Cooler Carry-All” at the six-digit level is, therefore, properly classified in subheading 4202.92, HTSUSA.
Classifying the “Cooler Carry-All” at the next level is more problematic. The merchandise descriptions at the next level of indentation that must be compared are “Insulated food or beverage bags:” and “Travel, sports and similar bags:”.
The General Rules of Interpretation, particularly GRI 6, permit application of the principles of GRI 1 through GRI 5 at the subheading level provided that “only subheadings at the same level are comparable.” General Rule of Interpretation 6. Application of GRI 1 and GRI 2 at this descriptive level does not resolve the question of the proper classification of the “Cooler Carry-All.” Customs must now utilize the precepts of GRI 3, as applied through GRI 6.
General Rule of Interpretation 3, as applied to this descriptive subheading level through GRI 6, becomes applicable when pursuant to GRI 2(b) or for any other reason the merchandise under classification consideration is prima facie classifiable under two or more subheadings. In this instance, the “Cooler Carry-All” is prima facie classifiable as an insulated food or beverage bag and as a travel, sports or similar bag. The “Cooler Carry-All” has both a distinct insulated compartment, as well as a distinct travel or sports compartment.
General Rule of Interpretation 3(a), which states, in part, that “[t]he [sub]heading which provides the most specific description shall be preferred to a more general description” is not applicable. General Rule of Interpretation 3(a) is not applicable because the “Cooler Carry-All” is a composite good composed of the travel or sports compartment, as well as, the insulated compartment and the descriptive subheading levels under consideration each only refer to part of the entire article. When the subheadings under consideration each only refer to part of a composite good, “those [sub]headings are to be regarded as equally specific” and resort must then be had to GRI 3(b). See generally General Rules for the Interpretation of the Harmonized System, Rule 3(b) Explanatory Note (IX) (providing, in part, that composite goods include goods made up of different components in which “the components are attached to each other to form a practically inseparable whole”).
General Rule of Interpretation 3(b) provides, in part, that composite goods made up of different components, that cannot be classified pursuant to GRI 3(a), “shall be classified as if they consisted of the…component which gives them their essential character, insofar as this criterion is applicable.” The GRI’s do not provide a definition for the phrase “essential character,” but the EN’s suggest an illustrative list of factors to consider. Explanatory Note Rule 3(b) (VIII) states that the factors which may be relevant to the determination of “essential character” “will vary between different kinds of goods,” but may include the nature of the material or component, its bulk, its quantity, its weight, its value or the role played by the constituent material in relation to the use of the good. General Rules for the Interpretation of the Harmonized System, Rule 3 (b) Explanatory Note (VIII).
It is the conclusion of the Customs Service that the component of the “Cooler Carry-All” that affords the item its “essential character” is the insulated food or beverage component. The insulated food or beverage component has a greater role in the use of the entire article than the travel or sports component. It is the determination of this office that consumers will purchase this item because of its cooler component and utilize the travel or sports component, but would not generally purchase the item to primarily use it as a travel or sports bag.
The facts presented to the Customs Service by counsel additionally support the determination that the insulated food or beverage component provides the article with its essential character. Counsel’s submission indicates that the food or beverage compartment, with the trademarked insulation and the antibacterial protection in the plastic liner, is valued at $4.61 while the travel or sports component is only valued at $3.85. Counsel additionally advises Customs that the food or beverage component weights 574 grams while the travel or sports component weighs 564 grams. It is noted that Custom has not independently weighed the respective components, but an informal comparison suggests that the insulated food or beverage component out-weighs the travel or sports component by more than 10 grams.
The Customs Service, for the reasons previously stated, concludes that GRI 3(b) as employed through GRI 6 at the descriptive subheading level between the six-digit level and the eight-digit level enables classification of the “Cooler Carry-All.” The component of the good that provides its essential character is the insulated food or beverage bag component. The “Cooler Carry-All,” based on a comparison of the descriptive subheadings at this level, is classified as an insulated food or beverage bag.
The “Cooler Carry-All,” at the eight-digit level, is classified in subheading 4202.92.05, HTSUSA. Subheading 4202.92.05, HTSUSA, provides for “…Insulated food or beverage bags: With outer surface of textile materials….”
Continuing the classification of the “Cooler Carry-All” at the ten-digit level, the article is classified in subheading 4202.92.0507, HTSUSA. Subheading 4202.92.0507, HTSUSA, provides for:
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 of mainly covered with such materials or with paper.
Other:
With outer surface of sheeting of plastic or of textile materials:
Insulated food or beverage bags:
With outer surface of textile materials,
4202.92.0507 Of man-made fibers. (Emphasis added).
The Customs Service has also concluded that it is important to distinguish the merchandise in HQ 964449 (Jan. 14, 2002) from the merchandise in this ruling. The item in HQ 964449, identified by the importer as a “Super Pack,” is approximately eleven (11) inches in height, eight (8) inches in width and five (5) inches in depth. It has two compartments with wrap-around zippers, one of which is insulated with a “Therma-Flect®” wall and has the “Microban®” antibacterial protection, and one of which only has polyurethane foam insulation or padding. The “Super Pack” also has numerous pockets, one in the “Therma-Flect®” -insulated compartment, four in the other compartment and two on the exterior front of the article. Most of these pockets serve to organize, protect and carry items unrelated to food or beverages, i.e., eyeglasses, cellular phone, keys, etc.
The compartment with the “Therma-Flect®” wall is the larger and measures approximately four (4) inches in depth. The larger compartment, while possessing the “Therma-Flect®” wall, does not have features, such as a water-tight plastic lining, that would be expected to be found in a cooler. The larger compartment, in fact, only has a single “Therma-Flect®” wall, the remaining aspects of the interior being composed of a man-made textile fabric.
Significant to Customs determination that the “Super Pack” of HQ 964449 is classified as a traveling bag of heading 4202, HTSUSA, is the fact that although it has both a primary insulated compartment and secondary insulated or padded compartment, the separate compartments of the “Super Pack” are not individually distinguishable from the item as a whole. The “Cooler Carry-All,” by comparison, has insulated and non-insulated compartments that are individually distinguishable. One compartment has all the features of a “travel, sports and similar bag” of heading 4202, HTSUSA, and the other compartment has all the features of an “insulated food or beverage bag” also of heading 4202, HTSUSA. Customs, because the compartments of the “Super Pack” were not individually distinguishable, concluded that the item as a whole, pursuant to GRI 1, was similar to a “traveling bag.”
In the instant case, Customs has concluded that the distinguishable compartments of the “Cooler Carry-All” respectively possess the features of a “travel, sports and similar bag” and an “insulated food or beverage bag.” Since the “Cooler Carry-All” may not be classified pursuant to its similarity to a single article designated eo nomine in heading 4202, HTSUSA, resort at the subheading level was had to GRI 3(b). Customs, in accordance with the application of GRI 3(b) at the subheading level, determined that the “Cooler Carry-All” is classified as an “insulated food or beverage bag.”
HOLDING
The “Cooler Carry-All” is classified in subheading 4202.92.0507, Harmonized Tariff Schedule of the United States Annotated.
The General Column 1 Rate of Duty is seven (7) percent, ad valorem.
The textile quota category is 670. Customs advises that there are no applicable quota or visa requirements for products of World Trade Organization (WTO) member-countries. The textile quota category above applies to merchandise produced in a country that is not a member of the WTO.
It is recommended that California Innovations, Inc. contact its local Customs Service office prior to the importation of this merchandise from a non-WTO member-country to determine the current status of any restraints or requirements due to the changeable nature of the statistical annotation, the ninth and tenth digits of the HTSUSA, and the restraint (quota/visa) categories applicable to this textile merchandise.
The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the merchandise may be affected. Since part categories are the result of international bilateral agreements and subject to frequent renegotiations and changes, to obtain the most current information available resort may be had, close to the time of shipment, to the Status Report on Current Import Quotas (Restraint Levels). The Status Report is an internal issuance of the U.S. Customs Service that is updated weekly. It is available for inspection at local Customs Service offices and on the Customs Electronic Bulletin Board (CEBB) at: www.customs.gov.
Sincerely,
John Durant, Director
Commercial Rulings Division