CLA-2 CO:R:C:T 957465 ch
Norman W. DeWitt
Vice President, Operations
Rescare, Inc.
6044 Cornerstone Court West
Suite C
San Diego, California 92121
RE: Tariff classification of a carrying bag for a
prescription medical device from Australia; GRI 5(a);
GRI 3(b); composite article.
Dear Mr. DeWitt:
This is in response to your letter, dated December 20, 1994,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States (HTSUS) for a carrying bag imported
with a prescription medical device. A sample was sent to this
office for examination and will be returned to you under separate
cover.
FACTS:
The submitted sample is a polyester carrying bag (600 denier
polyester) measuring approximately 14 inches by 12 1/2 inches by
7 inches. It is imported with a device used in the treatment of
a medical condition known as obstructive sleep apnea, a
respiratory disorder. You seek to have the carrying bag
classified with the medical apparatus.
The bag possesses a top handle and a shoulder strap. It
features three zippered pockets which you state have been custom
designed to the following specifications:
-- A small front pocket designed to carry essential
documentation (user manual and patient data) and the power
cord for the unit;
-- A center pocket designed to carry necessary products such
as the mask system, a flow generator, DC power adapters, an
electronic pressure setting device;
-- A rear pocket designed to carry air tubing and
connectors.
The center and rear pockets run the full length and width of the
bag. The front pocket measures approximately 6 1/2 inches by 12
1/2 inches. The bag is not internally fitted to hold its
contents; nor is it shaped to the form of the medical parts.
ISSUE:
What is the proper tariff classification for the carrying
bag?
LAW AND ANALYSIS:
General Rule of Interpretation (GRI) 5(a) states:
Camera cases, musical instrument cases, gun cases, drawing
instrument cases, necklace cases and similar containers,
specially shaped or fitted to contain a specific article or
set of articles, suitable for long-term use and entered with
the articles for which they are intended, shall be
classified with such articles when of a kind normally sold
therewith. This rule does not, however, apply to containers
which give the whole its essential character (emphasis
added).
The Explanatory Note (EN) to GRI 5(a) provides that:
(I) This Rule shall be taken to cover only those containers
which:
(1) are specially shaped or fitted to contain a
specific article or set of articles, i.e., they are
designed specifically to accommodate the article for
which they are intended. Some containers are shaped in
the form of the article which they contain;
(2) are suitable for long-term use, i.e., they are
designed to have a durability comparable to that of the
articles for which they are intended. These containers
also serve to protect the article when not in use
(during transport or storage, for example). These
criteria enable them to be distinguished from simple
packings;
(3) are presented with the articles for which they are
intended, whether or not the articles are packed
separately for convenience of transport. Presented
separately the containers are classified in their
appropriate headings;
(4) are of a kind normally sold with such articles; and
(5) do not give the whole its essential character.
(Emphasis added).
In order for the carrying bag to be classified with the medical
apparatus, it must meet the criteria set forth above.
A container which meets the specifications of GRI 5(a) must
be specially shaped or fitted to hold its contents. You concede
that the carrying bag is not shaped to the form of the medical
equipment. However, you state that it has been custom designed
for packaging the unit. Specifically, you observe that the
pockets are designed to hold specific components.
While we agree that the bag is suitable for holding the
various parts of the unit, we do not agree that the pockets are
fitted as required by GRI 5(a). The pockets could just as easily
hold clothes, camera equipment, school supplies and other
personal effects of various dimensions. Hence, the bag is not
fitted to hold a specific article or set of articles.
Consequently, the carrying bag fails the first criterion.
Moreover, the bag has the appearance and characteristics of
an ordinary travel bag. Unlike the exemplars set forth in GRI
5(a), which have little or no use apart from their contents, the
instant item is desirable in and of itself. Similar bags are
sold individually at retail. For this reason, we conclude that
the subject merchandise is not of a kind normally sold with the
medical equipment. Therefore, the carrying bag also fails the
fourth criterion.
GRI 3(b) states:
Mixtures, composite goods consisting of different materials
or made up of different components, which cannot be
classified by reference to 3(a), shall be classified as if
they consisted of the material or component which gives them
their essential character (emphasis added).
On occasion, we have determined that a carrying bag and its
contents may be classified as composite good, with the essential
character imparted by the contents. See Headquarters Ruling
Letter (HRL) 955787, dated April 26, 1994 (carrying bag
classified with boxer shorts); HRL 087280, dated July 16, 1990
(carrying bag classified with ponchos); HRL 086343, dated July
13, 1990 (carrying bag classified with windbreaker); HRL 086344,
dated July 5, 1990 (carrying bag classified with coveralls).
Thus, GRI 3(b) provides an alternative basis by which a carrying
bag may be classified with its contents.
The EN to GRI 3(b) provides in pertinent part that:
For the purposes of this Rule, composite goods made up of
different components shall be taken to mean not only those
in which the components are attached to each other to form a
practically inseparable whole but also those with separable
components, provided these components are adapted one to the
other and are mutually complementary and that together they
form a whole which would not normally be offered for sale in
separate parts (emphasis added).
As noted above, the carrying bag is in the nature of a travel bag
for carrying various personal effects. It is of a durable
construction and would normally be sold as an independent product
in its own right. Consequently, in this instance the carrying
bag and the medical equipment do not comprise a composite
article.
As the carrying bag cannot be classified with the medical
device, it must be classified under the heading which most
specifically describes it. Therefore, it is classifiable in
heading 4202, HTSUS, which provides in pertinent part for travel,
sports and similar bags.
HOLDING:
The subject merchandise is classifiable under subheading
4202.92.3030, HTSUS, which provides for travel, sports and
similar bags: with outer surface of textile materials: other,
other: of man-made fibers: other. The applicable rate of duty
is 19.8 percent ad valorem. The textile quota category is 670.
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 the subject of frequent negotiations 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 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 status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division