CLA-2: RR:CR:TE 964449 mbg
Despina Keegan, Esq.
Serko & Simon LLP
c/o Baker & Hostetler
666 5th Avenue, 16 Floor
New York, NY 10103
RE: Classification of “Super Pack”
Dear Ms. Keegan:
This is in response to your request of May 25, 2000, on behalf of your client, California Innovations, Inc., for a ruling as to the classification of what you term a “Super Pack” under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”).
FACTS:
The submitted sample is identified as “Super Pack”, product code #54800, and is manufactured in Myanmar. It measures approximately 9 ½ inches in height by 7 ½ inches in width by 3 ½ inches in depth. You have stated that the exterior surface is composed of 60 percent ramie and 40 percent polyester with a tone poly trim.
The subject bag consists of two large compartments with smaller zippered pockets inside. You have referred to the compartments as the “main compartment” and the “outside compartment.” Customs will use this terminology for ease of reference only.
The main compartment is intended to serve as an ice pack/ hot pack for food. The compartment has a wrap around zippered closure and you claim that the compartment will also include a built in antibacterial protection known as “Microban®” to inhibit odors and stains. The main compartment is insulated with polyurethane foam and a “Therma-Flect ® layer”. You have stated that this insulation is a registered trademark of your client and is intended to keep food and/or beverages cold or hot for hours. Attached to the side of the main compartment is a large mesh pocket with a velcro™ closure.
The interior of the outside compartment features two zippered mesh pockets, an open pocket, a pocket shaped for eyeglasses or cellular phone and a textile strap with a plastic clip attached to accommodate keys. The outside of the compartment also features a flap pocket with a velcro™ sealed closure that measures approximately 6 ¼ inches in width by 5 ¼ inches in height by 1 inch in depth. The flap pocket also has a corner triangular zippered compartment.
There is a matching adjustable textile strap, which can be attached to plastic d-rings on the side of the bag to allow it to be worn over a shoulder. The strap can also be attached to d-rings at the back bottom of the bag and when fed through a textile loop at the top, can be worn over the shoulders, similar to a backpack. In addition, the bag has a carrying strap at the top which measures approximately 6 ½ inches in length.
ISSUE:
What is the proper classification of the subject merchandise under the HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the 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 GRIs may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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.
Heading 4202, HTSUSA 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, 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.” Thus, this heading encompasses the articles enumerated, as well as containers similar to these articles.
While not legally binding, the EN represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.
The EN to heading 4202 suggest that the expression “similar containers” in the first part of the heading “includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.” With regard to the second part of heading 4202, the EN indicate that the expression “similar containers” indicates articles which must be wholly or mainly composed of or covered with the materials specified therein and it includes “note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewellery rolls, shoe-cases, brush-cases, etc.” There is no requirement that the articles be specially shaped or fitted.
Heading 4202 indicates coverage is for only the articles specifically named and similar containers. Inasmuch as a “Super Pack” is not eo nomine provided for in heading 4202, HTSUSA, we must consider whether or not the goods are classifiable as “similar containers” under 4202, HTSUSA. Applying the principle of statutory construction known as ejusdem generis, which means “of the same kind,” Customs finds that the subject merchandise is covered by the term “similar containers.”
Under the rule of ejusdem generis, where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. With respect to the broad reach of the residual provision for "similar containers" in heading 4202, HTSUSA, the courts have found that the rule of ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated in order to be classified under the general term. Totes, Inc. v. United States, 18 Ct. Int'l Trade 919, 865 F. Supp. 867, 871 (1994), aff'd, 69 F.3d 495 (1995). In Totes, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed the Court of International Trade's (“CIT”) determination that the "essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items." Id.
Additional U.S. Note 1 to Chapter 42 states:
For the purposes of heading 4202, the expression “travel, sports and similar bags” means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.
(emphasis added).
As clearly set forth in Additional U.S. Note 1 to chapter 42, the term “travel, sports and similar bags” provides for items designed for carrying clothing and other personal effects during travel. Customs has long considered food and beverages to be "personal effects." In HQ 953458, dated April 16, 1993, this office stated that "[a]s backpacks and shopping bags are designed to carry food and beverages, we conclude that food and beverages are "personal effects" for the purposes of Chapter 42." “Personal effects” can be interpreted to mean any number of goods and substances including food and water. See HQ 954072, dated September 2, 1993 in which Customs stated:
[T]here is no definition of the term "personal effects" within the tariff schedule. . . . Although the tariff does not provide an explicit definition of the term "personal effect," it does provide a clear sense of what is intended by that term. . . . [H]eading 4202, HTSUSA, provides for a variety of containers ranging from luggage to sports and travel bags, to fitted cases, and assorted similar articles. Its scope extends to various containers that are used to store and/or transport the belongings of an individual, as opposed to bulk goods or commercial goods. It is too restrictive to interpret the term "personal effects" for purposes of classification within heading 4202, HTSUSA, as pertaining only to objects to which an individual has an "intimate" relation. That standard is too subjective. . . . [H]eading 4202, HTSUSA, provides for, in part, containers designed to transport the assorted personal belongings of an individual whether it be food, clothing, documents, tools, etc... . Food is therefore within the realm of "personal effects" that are transportable by the containers of heading 4202, HTSUSA.
As further support, in Totes Inc., v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), the Court of International Trade also ruled that by virtue of ejusdem generis the residual provision for “similar containers” in heading 4202, HTSUS, is to be broadly construed. The court found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the enumerated exemplars, i.e., “…to organize, store, protect and carry various items.” Heading 4202, HTSUS, in general, provides for containers used to convey personal articles; these “containers” can be anything designed to transport the assorted personal belongings of an individual.
We considered the decision by the Court of Appeals for the Federal Circuit in SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997), which classified portable, soft-sided, insulated cooler bags with outer surface of plastics under heading 3924, HTSUSA. In implementing the decision, Customs extended SGI's principles to hard or soft-sided, insulated coolers and similar insulated containers with outer surface of plastics or of textile materials (classifying such goods in headings 3924 or 6307, respectively). The classification of containers possessing the form and characteristics of bottle cases and insulated bottle bags (designed to contain one bottle or beverage), backpacks, and other containers similar to those enumerated under heading 4202, however, were unaffected by the decision in SGI.
Application of Totes and the EN to heading 4202 to the analysis of the subject merchandise supports classification under heading 4202. The subject merchandise allows for ease of storage and efficient transporting of food and other personal items. The design and durable construction of the subject bag is such that it can be used repeatedly. It undoubtedly provides storage, protection, organization and portability to personal effects during travel. The “Super Pack” allows the user to combine the portability of one’s lunch with those essentials such as a cell phone or eyeglasses when going out for the day. The subject bag is designed to allow for maximum efficiency in combining all of one’s essential personal effects in one convenient bag. Customs finds that the subject bag is properly classified as a travel bag under subheading 4202.92, HTSUSA under the tariff which was in effect when this ruling request was filed with Customs.
As you may be aware, on November 18, 1999, the International Trade Commission (“ITC”) instituted Investigation No. 1205-5, which proposed changes to the HTS resulting from the work of the World Customs Organization and the Harmonized System Committee to update and clarify the Harmonized System nomenclature. Effective January 10, 2002, the adoption of modifications to the text of heading 4202 resulted in insertion of the term “insulated food or beverage bags” immediately following the term “traveling bags.” This modification requires that all insulated bags for food or beverages, and similar containers, are classified only under heading 4202. A new eighth paragraph is inserted in the EN to heading 42.02 stating 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.” Newly created subheadings 4202.92.05 (outer surface of textile materials) and 4202.92.10 (outer surface of other materials such as plastics or fabric-backed compact plastics), HTSUSA, provide specifically for “Insulated food or beverage bags.” Insulated bags used to carry various personal effects in addition to food or beverages, however, if deemed more similar to other exemplars such as, in this case, backpacks or travel bags, are classified in those provisions.
Previously issued inconsistent rulings on insulated food or beverage bags will not be modified or revoked pursuant to 19 U.S.C 1625 by publishing a notice of proposed action in the Customs Bulletin, which would provide the opportunity for public comment, or by publishing a final modifying or revoking notice. Such publication and issuance requirements are inapplicable in circumstances in which a Customs position is modified, revoked or otherwise materially affected by operation of law, by publication pursuant to other legal authority or by other appropriate action taken by Customs in furtherance of an order, instruction or other policy decision of another governmental agency or entity pursuant to statutory or delegated authority. Such circumstances include the adoption or amendment of a statutory provision, including any change to the HTSUS. As noted above, the ITC has amended statutory provisions within the HTSUS to provide for "insulated food or beverage bags” in two new subheadings effective January 10, 2002. This action by another governmental agency obviates Customs publication and issuance requirements. Previously issued rulings inconsistent with these amendments are therefore revoked by operation of law effective January 10, 2002. The change to the Harmonized Tariff Schedule to include an eo nomine provision for “insulated food or beverage bags” within heading 4202 also supersedes any inconsistent instructions issued and disseminated to the importing community to implement the CAFC’s decision in SGI. Changes to the HTS are available in the Office of the Secretary, Room 112, United States International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436 (telephone: 202-205-2000), and are posted on the Commission's web site at .
HOLDING:
FOR ENTRIES MADE PRIOR TO, ON, OR AFTER JANUARY 10, 2002, the subject “Super Pack”, product code number 54800, is properly classified in subheading 4202.92.2000, HTSUSA, which 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, toilet bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder boxes, 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: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Of vegetable fibers and not of pile or tufted construction: Other.” The general column one duty rate is 5 percent ad valorem. The textile category number is 870. There are no quota/visa requirements for World Trade Organization (“WTO”) members. The textile category number applies only to merchandise produced in non-WTO countries.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at .
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director Commercial Rulings Division