CLA-2 RR:CR:TE 963119 SS
John P. Donohue, Esquire
Donohue and Donohue
232 South Fourth Street
Philadelphia, PA 19106
Re: “The Freedom Bag Travel Case”; 4202.92.2000, HTSUSA; Travel, Sports and Similar Bags; 3924.90.5500, HTSUSA; Other Toilet Articles of Plastic; 4911.10.00, HTSUSA; Other Printed Matter; Not 9605.00.0000, HTSUSA; Not a Travel Set for Personal Toilet; Not a GRI 3(b) Set
Dear Mr. Donohue:
This letter is in response to your request dated April 19, 1999, on behalf of your client International Strategic Alliance, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a travel bag made in China. A sample was submitted with your request.
We note that your request for a binding ruling superceded a ruling request filed by Amco Customs Brokerage Company, Inc. on behalf of International Strategic Alliances, Inc. dated October 19, 1998.
FACTS:
The submitted sample is a travel bag identified by the importer as “The Freedom Bag Travel Case” or more simply “The Freedom Bag.” The bag is rectangular in shape and measure approximately 10 inches in height by 14 inches in width by 3.5 inches in depth. The outer layer of the bag is made of woven textile fabric said to be 55 percent ramie and 45 percent man-made fibers. The exterior of the bag features one full-width flat pocket with a hook and loop closure. The bag has two textile webbing carry handles with a textile fabric wrap around grip which is secured to itself by means of a hook and loop fastener. The handles can be adjusted to form a single shoulder strap. A zipper extends along three sides of the bag which allows the bag to be opened and laid out flat. The interior of the bag features twenty open pockets made of clear plastic sheeting. Full-sized flaps secure the contents of these pockets by a hook and loop closure. The flaps feature forty elastic band restraints for securing various sized objects and two full-sized zippered pockets made of clear plastic sheeting. The spine of the bag also features two large elastic band restraints. When imported, the bag contains a molded plastic soap dish/carrier, molded plastic toothbrush holder, two molded plastic round bottles with plastic threaded caps, and a printed Warranty Card and catalog.
Information submitted by the importer indicates the bag is designed to contain a variety of personal effects including “toiletries, cosmetics, jewelry, lingerie” and the purchaser is encouraged to use her imagination. The advertising literature states the bag is “so convenient and compact you can leave all your things neatly organized right in the Freedom Bag travel case.” The bag “hangs up practically anywhere for easy access” and is “perfect for the person on the go.” The bag is advertised as a multi-pocketed case that can hold and organize over 200 items large and small. The clear pockets are described as “easy to fill, sturdy see through compartments” that let the purchaser “find anything at a glance.” The pockets hold full-sized containers and the advertisement states “no more transferring shampoo and other products into pocket-size sample bottles.” The plastic containers are advertised as a “free gift” with the purchase of the bag.
ISSUE:
I. What is the proper classification for “The Freedom Bag Travel Case?”
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.
The importer originally contended that the bag was classified as a travel set under heading 9605, HTSUSA. Heading 9605, HTSUSA, provides for, among other things, travel sets for personal toilet. The EN to heading 9605, HTSUSA, state that the heading covers certain travel sets consisting of articles individually falling in different headings of the Nomenclature or consisting of different articles of the same heading. Since the travel bag is classifiable in heading 4202, HTSUSA, and the plastic containers are classifiable under heading 3924, HTSUSA, the Freedom Bag travel case is potentially classifiable under heading 9605, HTSUSA.
The EN specifically states that the heading includes “[t]oilet sets, presented in a case of leather, fabric or plastics, containing, e.g., moulded plastic boxes, brushes, a comb, scissors, tweezers, a nail file, a mirror, a razor holder and manicure instruments.” Empty plastic containers imported in toiletry bags made of textile and/or plastic sheeting have consistently been classified under heading 9605, HTSUSA. See Headquarters Ruling Letter (HQ) 081470, dated July 31, 1989 (textile and vinyl toiletry bag containing plastic soap dish, toothbrush case and lotion bottle); HQ 081347, dated April 5, 1989 (cosmetic pouch containing plastic toothbrush holder and other articles); HQ 081394, dated March 28, 1989 (textile and plastic toiletry bag containing plastic soap dish, bottle and jar); HQ 082703, dated February 28, 1989 (textile and plastic tote bag containing a variety of empty plastic containers designed to hold toothbrushes, soap, perfume and the like); HQ 081485, dated April 13, 1989 (plastic travel cases containing plastic soap case, jars, lotion bottles and toothbrush holder); HQ 081471, dated January 24, 1989 (toiletry bags containing plastic soap dish, lotion bottles, jar and toothbrush case); New York Ruling Letter (NY) 850347, dated April 6, 1990 (plastic drawstring pouch containing plastic soap case, lotion bottle and toothbrush holder); NY 861926, dated April 23, 1991 (textile and plastic bag containing four plastic bottles and soap box); NY 863956, dated July 1, 1991 (cotton lace travel case containing four plastic bottles, two plastic jars and covered soap dish); NY 864018, dated July 2, 1991 (vinyl and cotton lace bag containing plastic toothbrush holder and covered soap dish); NY A81570, dated April 2, 1996 (heavy woven nylon bag containing toothbrush holder, plastic bottles, and plastic soap dish); NY A86835, dated September 17, 1996 (plastic case containing two lotion bottles and two cream jars); NY C87720, dated June 1, 1998 (vinyl toiletry bag containing plastic toothbrush holder, soap dish, two bottles and two containers); NY C87721, dated June 1, 1998 (vinyl toiletry bag containing plastic toothbrush holder and soap dish); NY E86996, dated September 23, 1999 (PVC traveling bag containing plastic toothbrush holder and covered soap dish); NY F80310, dated December 17, 1999 (plastic pouch containing
plastic soap box, toothbrush holder and lotion bottle); and NY F87073, dated May 23, 2000 (vinyl bag containing plastic soap holder and toothbrush case).
However, the instant travel bag is distinguishable. In an exhaustive search of pertinent rulings, the bags containing the plastic accessories only had one to three compartments. Additionally, most of the bags were not described as having space to carry additional personal toiletries. Furthermore, it can be argued that the bags were designed to contain a particular set of articles. In contrast, the instant bag is a generic travel bag capable of holding a large number of items; it is not specifically designed for the set of plastic containers. Although the plastic containers are of a size which fit in the pockets, the pockets have not been specifically designed nor specially shaped or fitted for the particular containers. The instant travel bag is distinguishable from the other bags classified in heading 9605, HTSUSA, in that it is designed to carry and organize numerous articles in addition to the four plastic containers with which it is imported.
In HQ 951486, dated June 12, 1992, Customs classified a three pocket toilet/travel bag containing a plastic toothbrush holder, soap box, bottle and jar as a travel set under heading 9605, HTSUSA. The bag was approximately 12.5 inches long by 7.5 inches high with a 3 inch bottom tapering to .75 inch at the top. The bag had a three-sided zipper closure and the interior of the bag was divided down the middle by an attached clear plastic pouch with a top zipper closure. The outside of the pouch had two pockets on each side capable of containing small items. The plastic accessories were contained in an unattached plastic pouch with zipper closure. Customs stated that the heading and EN did not include any restrictions on the size of the outer container of a travel toilet set or on the number of pockets or compartments into which the interior of that container may be divided. However, Customs also stated that the interior volume of the bag in excess of that which is necessary to accommodate the plastic containers was not unreasonable and made the bag capable of holding some additional articles to suit a traveler’s personal toilet needs. It is Customs belief that the instant bag is distinguishable. The interior of the instant bag has at least 64 compartments and is advertised as being capable of holding 200 items. The carrying capacity of the instant bag is so far in excess of that needed to carry the four minor plastic components that classification as a travel set under 9605, HTSUSA, is unreasonable.
Furthermore, it is Customs belief that the instant bag is not of a class or kind of bag that is normally sold as part of a travel set of heading 9605, HTSUSA. The instant bag is of a kind normally sold at retail as a travel bag without contents such as plastic toiletry boxes. See also HQ 960009, dated October 16, 1997. Similarly, the plastic containers are of a kind normally sold individually as toilet accessories. Customs notes that the plastic containers are merely offered as a free gift when the bag is purchased. A consumer is not constrained to use the plastic containers with the instant bag. As the advertising suggests, a consumer may chose to insert her own bottles rather than transferring products to the plastic bottles because the bag is designed to carry full-sized toilet products. Clearly, the incentive to purchase this product is the bag itself. The mere addition of a few minor plastic articles does not transform the instant travel bag into a travel set of 9605, HTSUSA. Due to the overwhelming ability to carry a variety of other toilet items, the instant bag maintains its separate identity as a travel bag.
The failure to qualify as a travel set does not automatically mean that the merchandise cannot be classified as a set. When the travel bag and molded plastic containers are imported together, both heading 4202, HTSUSA, and heading 3924, HTSUSA, are applicable. Since the goods cannot be classified solely on the basis of GRI 1, the remaining GRI are considered. GRI 2(a) is not applicable since it covers incomplete or unfinished goods. GRI 2(b) directs 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 for 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. 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. However, for GRI 3(b) to apply, the combination of articles must meet three criteria. The EN state in Note X to GRI 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 instant combination of articles meets the first and last criteria of GRI 3(b). The items are classifiable in different headings and the combination will be put up for sale without the need for repacking. However, whether they meet the second criteria of being put together to meet a particular need or carry out a specific activity is questionable.
In HQ 959265, dated April 9, 1999, Customs declined to classify a toiletry bag imported with lotions and cleansers as a set under GRI 3(b). Noting that the bag was twice as large as would be necessary to hold the toiletries, Customs found that the toiletry case did not sufficiently relate to the other goods to form a set. Customs explained that the bag provided an incentive to purchase the toiletries which was independent of its use with them. Finding an insufficient nexus between the bag and the toiletries to form a set put up for retail sale, Customs classified the items separately. Although the instant case is distinguishable in that the bag is imported with empty containers, we find the rational to be persuasive. The instant bag can clearly be used to carry, organize and secure numerous items, including non-toiletry items such as jewelry and lingerie. Due to the ability to carry and organize a large number and broad range of goods, the instant travel bag does not sufficiently relate to the plastic containers for toilet items so that a particular need or specific activity can be identified. Thus, the items are classified separately.
Lastly, we note that the instant travel bag does not meet the criteria set forth in GRI 5 for classification with the plastic containers. The bag is not specially shaped or fitted so as to contain the specific set of plastic containers nor is it of a kind normally sold therewith. Also, the bag is not of a kind normally used for packing travel kits and it is clearly suitable for repetitive use.
The travel bag is separately classifiable under heading 4202, HTSUSA. At the subheading level, classification of the travel bag is determined by the material of the outer surface. Section XI, Subheading Note 2(A), HTSUSA, directs that goods are to be classified as if consisting wholly of that one textile material which predominates by weight. Since the outer surface of the travel bag is 55 percent ramie, the applicable subheading will be 4202.92.2000, HTSUSA, which provides for travel, sports and similar bags, with outer surface of sheeting of other vegetable fibers.
Heading 3924, HTSUSA, provides for, among other things, toilet articles of plastic. Although heading 3923, HTSUSA, specifically provides for plastic articles for the conveyance or packing of goods such as boxes, cases and bottles, we note that Customs has held that bottles used to hold a product of the user’s personal choice are generally precluded from heading 3923, HTSUSA. See HQ 960373, dated February 8, 1999 and HQ 952264, dated November 25, 1992. We note the EN to heading 3924, HTSUSA, state that toilet articles covered by the heading can be for domestic or non-domestic use and specifically include soap dishes and toothbrush holders. We also note that plastic lotion dispensers, soap dishes and toothbrush holders used in the home have been classified under heading 3924, HTSUSA. See HQ 960281, dated August 22, 1997 and NY F89013, dated July 25, 2000. Thus, the molded plastic toothbrush holder, soap container and two bottles are classified under heading 3924.90.5500, HTSUSA, which provides for, among other things, toilet articles of plastic.
You argue that in HQ 084657, dated June 13, 1989, an empty plastic cosmetic compact was classified under heading 3923, HTSUSA. The ruling does not clearly explain whether the cosmetics inserted into the bottom of the compact importation is done by the consumer or by a commercial entity prior to sale to the consumer. Accordingly, we find the ruling to be unpersuasive.
Heading 4911, HTSUSA, provides for other printed matter. The EN to subheading 4911, HTSUSA, state that the heading includes, among other things, printed forms such as magazine subscription forms, identity cards, documents of title, advertising matter and catalogs. Catalogs have consistently been classified under subheading 4911.10.00, HTSUSA, which provides for trade advertising material, commercial catalogs and the like. See NY 813626, dated August 29, 1995; NY 813926, dated August 29, 1995; NY 863309, dated May 20, 1991; and NY E81921, dated May 14, 1999. Thus, the catalog is classified under subheading 4911.10.00, HTSUSA. The warranty card is classified under subheading 4911.99.60 or 4911.99.80, HTSUSA, depending on the method of printing, as other printed matter. The warranty card may be disregarded as de minimis for classification purposes. See HQ 954576, dated March 30, 1994 and HQ 953472, dated March 21, 1994.
HOLDING:
The travel bag is classified under subheading 4202.92.2000, HTSUSA, the provision for “ . . . traveling bags, toiletry bags . . . and similar containers . . . : 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 5.9 percent ad valorem and the quota category is 870.
The molded plastic soap dish, toothbrush holder and two lotion bottles are classified under subheading 3924.90.5500, HTSUSA, the provision for “Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other.” The general column one duty rate is 3.4 percent ad valorem.
The catalog is classified under subheading 4911.10.00, HTSUSA, the provision for “Other printed matter, including printed pictures and photographs: Trade and advertising material, commercial catalogs and the like.” The general column one duty rate is “Free.”
The warranty card is classified under subheading 4911.99.60 or 4911.99.80, HTSUSA, depending on the method of printing. If classified under 4911.99.60, HTSUSA, the general column one duty rate is .1 percent ad valorem. If classified under 4911.99.80, HTSUSA, the general column one duty rate is 1.5 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 on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, you should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division