CLA-2 RR:CR:TE 961517 GGD
Paula Smith, Esquire
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036-7703
RE: "FluidLink Hydration System;" Carrier and Bladder for
Hands-Free Intake of Liquids; Composite Articles; Headings
3926 and 4202, HTS
Dear Ms. Smith:
This letter is in response to your request of February 23,
1998, on behalf of your client, K2 Corporation, concerning the
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of five separate styles of articles,
each of which consists of a plastic bladder designed to contain
and dispense liquids and its textile carrier designed to be worn
on the back or waist. The articles are manufactured in Sri
Lanka. Samples were submitted with your request.
FACTS:
The five samples, which are described as "FluidLink
Hydration Systems" and identified as model numbers K2-0129, K2-0130, K2-0131, K2-0132, and K2-0133 vary in size, capacity, and
features (the specifics of which are set forth below). At a
minimum, each of the articles consists of an insulated carrier
(composed of a nylon outer shell and a layer of polyester
laminated foam) and a bladder and hose (both composed of
urethane) with a silicone bite valve at one end. Together, these
components are designed to provide "hands-free" hydration, i.e.,
access to a potable liquid while the user is engaged in a
physical activity such as biking, hiking, climbing, etc. -2-
All of the carriers feature webbed textile adjustable
shoulder and/or waist strap(s). Most are manufactured to conform
to the size and shape of the bladder they are designed to carry
within a central compartment that is secured by a zippered
closure. Each bladder (described as a "FluidLink Flexible
Bottle") is double seamed, features a removable cap, and contains
up to 76 fluid ounces (of water, a sports drink, or other
liquid). The tube, which measures approximately 36 inches in
length, is designed to extend from the bottom of the bladder, out
the top of the carrier, to a point of attachment (to clothing)
near the user's mouth. When biting down on the valve at the end
of the tube, the user may obtain fluid with minimal effort. The
bladder collapses to the extent that fluid is removed.
The carrier components of "FluidLink" model nos. K2-0129 and
K2-0132 measure approximately 18 inches in height by 7 inches in
width and are designed to contain only their respective bladder
components. The carrier components of model nos. K2-0130, K2-0131, and K2-0133, however, have features which, to varying
degrees, expand their capacities for carrying items in addition
to the plastic component.
Model no. K2-0130 measures approximately 18 inches in height
by 7 inches in width and features three exterior pockets, two of
which have open tops and are composed of a nylon mesh fabric.
The third and largest pocket measures approximately 9 inches in
height by 4-1/2 inches in width and is located behind one of the
mesh pockets. An open-top flat pocket is located at the rear
interior of the large pocket. The large pocket has a flap with a
buckle closure. The interior side of the flap contains a flat
pocket with a zippered closure.
Model no. K2-0131 measures approximately 19 inches in height
by 7 inches in width at the top, and by 17-1/2 inches in width at
the bottom of the carrier. The increased width at the bottom
results from the presence of 2 large pockets extending outward,
each of which is said to have a capacity of 110 cubic
centimeters. The interior of each of the large pockets has a
full-width, flat, zippered pocket attached to one side. Attached
to the exterior surface of each large pocket is a flat, mesh,
open-top pocket. Between the 2 large pockets, there is an
additional open-top, mesh pocket which measures approximately 6-1/2 inches in height by 1-1/2 inches in width.
Model no. K2-0133 measures approximately 10 inches in height
by 8-1/2 inches in width. It is oval in shape and designed to be
worn around the waist. The article features one flat, full- -3-
width, zippered exterior pocket (which faces the wearer's waist)
and one flat, full-width open-top pocket on the rear interior of
the bladder compartment. The bladder capacity of model no. K2-0133 appears to be approximately 1 liter, about half the capacity
of the other 4 models.
ISSUE:
Whether the "FluidLink Hydration Systems" are classified
under heading 4202, HTS, as containers used to organize, store,
protect and carry various items; under heading 3923, HTS, as
plastic articles for the conveyance or packing of goods; or under
heading 3926, HTS, as other articles of plastics.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). 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 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.
Each of the articles essentially consists of two components
which together provide a user with "hands free" access to
liquids, but which, if imported separately, would be classifiable
under separate headings, i.e., heading 4202 and one of the
headings under chapter 39, HTS. Since the component which
contains and supplies the liquid is an article of plastics, we
first look to chapter 39, HTS, which covers "plastics and
articles thereof." In pertinent part, note 2(ij) to chapter 39,
HTS, states: "This chapter does not cover...trunks, suitcases,
handbags or other containers of heading 4202." Thus, if any of
the "FluidLink Hydration Systems" models is classifiable as a
container similar to the exemplars of heading 4202, it is
precluded from classification under any heading within chapter
39, HTS.
Heading 4202, HTS, provides, in part, for "Trunks...
briefcases...camera cases...holsters and similar containers;
traveling bags...backpacks...shopping bags...bottle cases...and
similar containers...." The exemplars named in heading 4202 have -4-
in common the purpose of organizing, storing, protecting, and
carrying various items. The EN to heading 4202 indicate 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. EN (c)
to heading 4202 indicates that the heading does not cover
articles which, although they may have the character of
containers, are not similar to those enumerated in the heading.
The classification of certain containers - portable, soft-sided, insulated cooler bags with outer surface of plastics - was
examined by the Court of Appeals for the Federal Circuit (CAFC)
in SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir.
1997). The CAFC focused on whether food or beverages were
involved with the eo nomine exemplars set forth in the tariff
provisions at issue and, without discussion of heading 4202
exemplars that organize, store, protect, and/or carry food or
beverages, the 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." The Court stated
that this classification "does encompass exemplars that are
ejusdem generis with the coolers because their purpose is to
contain food and beverages."
This office concluded that the CAFC's decision in SGI should
be implemented. Instructions were issued to Customs field
personnel on March 18, 1998 (and approved for dissemination to
members of the importing community), by which the principles of
the CAFC's decision were expressly extended to portable, hard or
soft-sided, insulated coolers and similar insulated containers
with outer surface of plastics or with outer surface of textile
materials. The instructions also stated that the classification
of bottle cases, insulated bottle bags, and similar containers
(if designed to contain only one bottle or similar single unit of
a beverage, regardless of the unit's capacity) was unaffected by
SGI. A bottle case, as noted above, is an exemplar container of
heading 4202 and, unlike the articles before the Court in SGI, is
not designed to contain food or multiple beverages.
The "FluidLink Hydration Systems" are not similar to the
soft-sided, insulated cooler bags at issue in SGI, nor to other
household articles of plastics classifiable under heading 3924.
Standing alone, each carrier component is somewhat similar to a -5-
sheath in the manner that its main compartment is form-fitted for
a particular bladder. The fact that the carrier is designed to
transport a plastic bladder filled with a single beverage also
renders the carrier component somewhat similar to a bottle bag.
Three of the models have carrier components with additional
pockets in which various items may be carried - a characteristic
of containers such as backpacks classifiable in heading 4202,
HTS.
With respect to "FluidLink" model no. K2-0131, we find that
its large pockets and their 220 cubic centimeter capacity, allow
the complete article to organize, store, protect and carry a
large quantity and variety of items in addition to the bladder -
characteristics which override the article's otherwise prominent
hydrating aspect. Due to the significant additional carrying
capacity of model no. K2-0131, we find that the article is
classifiable in heading 4202, HTS, as a container similar to a
backpack. In light of note 2(ij) to chapter 39, HTS, model no.
K2-0131 is precluded from classification under any heading within
chapter 39, HTS, and is classified in subheading 4202.92.9026,
HTSUSA, textile category 670, the provision for "Trunks...
holsters...backpacks...bottle cases...and similar containers...:
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."
Although the carrier component of each of the four remaining
"FluidLinK" models bears some similarity to a container of
heading 4202, the design, features, and use of each complete
article are principally related to providing hydration during
heavy physical exertion. Although the articles may have the
character of containers, they are not similar to those enumerated
in heading 4202. Despite the presence of relatively small and/or
flat pockets on model nos. K2-0130 and K2-0133, their essential
character, and that of model nos. K2-0129 and K2-0132, is
imparted by the plastics component and its ability to store and
efficiently provide liquid nourishment and/or refreshment.
To determine in which of the headings under chapter 39 the
four remaining articles are properly classified, we first look to
heading 3923, HTS, which covers "Articles for the conveyance or
packing of goods, of plastics; stoppers, lids, caps and other
closures, of plastics." In Headquarters Ruling Letter (HQ)
954072, issued September 2, 1993, this office compared headings
3923 and 4202 and stated that heading 3923 "provides for goods of
a commercial nature (i.e., containers for packing and shipping -6-
bulk or commercial goods), whereas heading 4202 provides for
containers used to convey personal articles in general (i.e.,
articles belonging to a person)." Although subheading
3923.30.00, HTSUS, provides for "Carboys, bottles, flasks and
similar articles," we concluded in HQ 952264, issued November 25,
1992, that the bottles classified in that subheading "are bottles
such as beverage bottles which are designed to be filled and sold
to the ultimate consumer with a beverage therein. They are not
containers to be filled by the end user." Since the "FluidLink"
bladder (described as a "Flexible Bottle") is intended to be
filled and refilled only by the end user, the "FluidLink
Hydration Systems" are not classifiable under heading 3923.
Heading 3926, HTS, covers "Other articles of plastics and
articles of other materials of headings 3901 to 3914." The EN to
heading 3926 indicate that the heading covers articles, not
elsewhere specified or included, of plastics. In HQ 960399,
issued February 26, 1998, this office classified a quart-sized
plastic canteen fitted with an insulated textile cover and
packaged for retail sale with an adjustable textile pistol belt.
We noted that the article was designed to be worn by an
individual primarily to hold and carry potable water and to be
filled by the ultimate consumer as needed. As such, the canteen
was found not to be designed for the conveyance or packing of
bulk or commercial goods. We concluded that the canteen was the
primary component of the kit and that the insulated cover and
pistol belt served a secondary function. The article was
classified under heading 3926, specifically in subheading
3926.90.9880. We likewise find that "FluidLink" model nos. K2-0129, K2-0130, K2-0132, and K2-0133, are classified in subheading
3926.90.9880, HTSUSA, the provision for "Other articles of
plastics...: Other: Other, Other." The general column one duty
rate is 5.3 percent ad valorem.
HOLDING:
The four articles identified by model nos. K2-0129, K2-0130,
K2-0132, and K2-0133, and described as "FluidLink Hydration
Systems," are classified in subheading 3926.90.9880, HTSUSA, the
provision for "Other articles of plastics...: Other: Other,
Other." The general column one duty rate is 5.3 percent ad
valorem.
The article identified by model no. K2-0131 and described as
a "FluidLink Hydration System" is classified in subheading
4202.92.9026, HTSUSA, textile category 670, the provision for -7-
"Trunks...holsters... bottle cases...and similar containers...:
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." The general column one duty rate is
19 percent ad valorem.
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.
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