CLA-2 RR:CTF:TCM W968427 KSH
Robert J. Leo, Esq.
Meeks and Shepard
330 Madison Avenue
39th Floor
New York, NY 10017
RE: Revocation of NY M85624; insulated wine bottle bag. Dear Mr. Leo:
This letter is in response to your request of October 10, 2006, on behalf of your client Built NY Inc., for reconsideration of New York Ruling Letter (NY) M85624, dated August 21, 2006, as it pertains to the classification of an insulated wine bottle bag under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
In NY M85624, we determined that the insulated wine bottle bag was classified in subheading 4202.92.9026, 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, 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 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: Other: Other: With outer surface of textile materials: Other: Of man-made fibers.” We have reviewed that ruling and found it to be in error. In accordance with 19 CFR 177.12(b), NY M85624 is revoked.
FACTS:
The merchandise at issue is an insulated wine bottle bag identified as the “Three Bottle Tote.” It is composed of 4mm of Neoprene rubber sandwiched between two layers of knit man-made fabric. It is in the general shape and dimension of three bottles and is designed to fit three 750ml to1L size bottles. The hangtag information submitted with your request states that the wine bottle bag is “clink proof, made with wetsuit grade neoprene, insulates for hours and lays flat when not in use.” Marketing literature also submitted with your request emphasizes that the wine bottle bag insulates hot or cold beverages up to four hours, is clink proof and allows for easy transport. You state that the wine bottle bag is sold in kitchen stores, wine stores, mass food and drug stores and outdoor stores with barware, accessories, food storage or camping sections and in the recreation or summer department.
We note that your initial request did not contain information regarding the packaging or hangtags or channels of trade which has been submitted in this request for reconsideration. Based on this newly submitted information, you claim that classification in subheading 4202.92.0807, HTSUSA, which provides for insulated food or beverage bags, is proper.
ISSUE:
Whether the insulated wine bottle bag is classified in subheading 4202.92.9026, HTSUSA, as other bags and containers with an outer surface of textile materials or in subheading 4202.92.0807, HTSUSA, as insulated food or beverage bags with an outer surface of textile materials.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
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, 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.
The EN to 4202, HTSUSA, indicates that the heading covers only the articles specifically named and similar containers. In Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995), the Court of International Trade held that the essential characteristics and purposes of the heading 4202, HTSUSA, exemplars are to organize, store, protect and carry various items. With respect to the broad reach of the residual provision for "similar containers" in heading 4202, HTSUSA, by virtue of the rule of ejusdem generis, the Court found that the rule requires only that the imported merchandise possess the essential character or purpose running through all of the enumerated exemplars.
There is no dispute that the wine bottle bag has the essential characteristics and purposes of the heading 4202, HTSUSA, exemplars, i.e., organization, storage, protection and portability. The sole issue for consideration is whether the wine bottle bag is an insulated food or beverage bag.
The EN to heading 4202, HTSUSA, states that "[t]he expression 'insulated food or beverage bags' covers reusable insulated bags used to maintain the temperature of foods and beverages during transportation or temporary storage."
Merchandise within the terms of heading of 4202, HTSUSA, is classified
by the merchandise’s principal use. When merchandise is classifiable according to its principal use, then Additional United States Rule of Interpretation 1(a), HTSUSA, applies, which states: (a) a tariff classification controlled by use (other than actual use) is to be
determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
Typically, the following factors are indicative, but not conclusive, of a good’s principal use: (1) the general physical characteristics; (2) the expectations of the ultimate purchaser; (3) the channels of trade; (4) the environment of sale; (5) whether the use is in the same manner as that which defines the class of article; (6) the economic practicality of using the article; and (7) the recognition in the trade of this use. See Kraft, Inc. v. United States, 16 CIT 483 (1992); G Heileman Brewing Co. v. United States, 14 CIT 614 (1990); United States v. Carborundum Company, 63 CCPA 98, C.A.D 1172, 536 F.2d 373 (1976), cert denied, 428 U.S. 979 (1976).
As evidenced by the submitted advertising information and information on the construction of the merchandise, the wine bottle bag is designed and manufactured from 4mm thick Neoprene rubber that allows the bottles to be kept cold or warm for up to four hours. It is marketed in the same channels of trade as soft-sided coolers and other bags used to store food or beverages.
We believe a consumer would primarily be motivated to purchase the wine bottle bag because of its insulation. In so concluding we note that it differs from similar wine bottle bags marketed and sold which would achieve the functions of storage, protection, organization and portability but do not provide insulation. As the motivation for purchasing the wine bottle bag is for its insulating properties, we believe the principal use is as an insulated beverage bag. Accordingly, the wine bottle bag is classified in subheading 4202.92.0807, HTSUSA.
HOLDING:
By application of GRI 1, the insulated wine bottle bag is classified in heading 4202, HTSUSA. It is specifically provided for in subheading 4202.92.0807, 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, 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 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: Insulated food or beverage bags: With outer surface of textile materials: Other: Of man made fibers.” The general column one rate of duty is 7% ad valorem.
Merchandise classified in subheading 4202.92.0807, HTSUSA, falls within textile category 670. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category number above applies to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent negotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas," which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer you to the web site of the Office of Textiles and Apparel of the Department of Commerce at http://otexa.ita.doc.gov.
EFFECT ON OTHER RULINGS:
Pursuant to 19 CFR 177.12(b), NY M85624, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division