CLA-2 RR:TC:TE 960184 jb
Debra J. Conner, Esq.
Schenker International, Inc.
4700 Lima Street
Denver, CO 80239-0945
RE: Request for Reconsideration of PD A88672; insulated
casserole dish caddie bag; merchandise is ejusdem generis
with containers of heading
4202, HTSUS
Dear Ms. Conner:
This is in response to your letter, dated January 6, 1997,
on behalf of your client, Tops of Rockies Marketing, requesting
reconsideration of Port Decision (PD) A88672, dated November 6,
1996, which classified an insulated casserole dish caddie bag in
heading 4202, Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The merchandise at issue is a casserole dish caddie bag,
measuring approximately 3 inches by 10 inches by 16 inches, with
an outer surface of PVC plastic sheeting. The bag features two
interior pouch pockets with hook and loop type fasteners and two
webbed textile strap handles. In PD A88672 the bag was
classified in heading 4202, HTSUS. You disagree with that
classification. You state in your submission that "the essential
character of the server casserole dish caddie is as a plastic
tableware item used to maintain either heat or cold while serving
food" and that "the proper customs classification of this item
would be somewhere within the 3924 tariff chapter, due to its'
plastic construction and the fact that that is where tableware,
kitchenware, trays and other food service items are classified".
ISSUE:
Whether the subject merchandise is properly classified in
heading 4202, HTSUS, or heading 3924, HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 requires
that classification be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI's will be applied, in the order of their appearance.
Heading 3924, HTSUS, provides for, among other things,
tableware, kitchenware, other household articles and toilet
articles, of plastic. You assert in your submission that the
proper classification for the subject merchandise is heading
3924, HTSUS. Enumerated among the exemplars at the subheading
levels to heading 3924, HTSUS, are such articles as salt,
pepper, mustard and ketchup dispensers, plates, cups, saucers,
soup bowls, cereal bowls, sugar bowls, creamers, gravy boats and
serving dishes. It is clear that the principal function of such
articles is not to convey or transport the contents but to
function as temporary serving containers. The function of the
subject merchandise on the other hand, is not only to allow for
short term storage and protection of food, but more importantly,
it is designed for the convenience of the individual when
transporting food items from one place to another (regardless of
how great or small the distance). These are characteristics
which are associated with heading 4202, HTSUS, and not heading
3924, HTSUS.
Heading 4202, HTSUS, provides for, trunks, suitcases, vanity
cases, attache 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. In Totes,
Inc., v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871
(1994), the Court of International Trade concluded that the
"essential characteristics and purpose of Heading 4202 exemplars
are...to organize, store, protect and carry various items." The
Court also ruled that by virtue of ejusdem generis the residual
provision for "similar containers" in heading 4202, HTSUS, is to
be broadly construed. 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. Since the function of the
subject merchandise is to carry and store food, it is ejusdem
generis with the containers of heading 4202, HTSUS. As such, it
is excluded from classification in heading 3924, HTSUS, by virtue
of Chapter Note 2(ij) of chapter 39, which states:
This chapter does not cover:
Saddlery or harness (heading 4201) or trunks, suitcases,
handbags or other containers of heading 4202;
In your submission you make reference to the "essential
character of the subject merchandise". In HQ 954072, dated
September 2, 1993, Customs ruled that a soft-sided insulated
cooler bag used to transport food and beverages was classified in
heading 4202, HTSUS. Of note, that ruling stated:
When classifying merchandise under the tariff schedule,
pursuant to GRI 3, the issue of "essential character" only
arises when there are two or more competing headings which
equally merit consideration. There is only one heading
which provides for the subject merchandise in the instant
case; as set forth above, heading 4202, HTSUSA, provides for
containers similar to the cooler-bags at issue which are
used during travel for the transport of food....
* * *
Even if an analysis of the subject merchandise's essential
character were relevant, this office is not of the opinion
that it is the insulation which imparts this attribute.
While we recognize that insulation may play an important
role in the use of this article, the fact that it will
maintain perishable foods longer than an uninsulated
container is not determinative of classification.... The
dominant characteristic of the subject article is that the
cooler-bag is transportable.... Not all food that is
transported will be perishable. It is on this basis that
Customs deems the transportability of the subject
merchandise, for the convenience of the user, as imparting
the motivating impetus for the purchase of this article.
Accordingly, classification is based on the article's
ability to transport food during travel and not on the fact
that the container can maintain food at regulated
temperatures.
Similarly, in the case of the subject merchandise, the most
appropriate classification for this merchandise is heading 4202,
HTSUS, which provides for containers used to convey personal
articles. Furthermore, an essential character analysis is not
required for the subject merchandise for the reasons discussed
above. The subject merchandise, whose function is principally to
store, protect and carry the contents placed therein, is properly
classified in heading 4202, HTSUS.
HOLDING:
The subject merchandise was properly classified in PD A88672
in subheading 4202.92.9040, HTSUS, which provides for, trunks,
suitcases, vanity cases, attache 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: with
outer surface of sheeting of plastic or of textile materials:
other: other: other: other.
The applicable rate of duty at the time PD A88672 was issued was
19.5 percent ad valorem. The current classification of this
merchandise is in subheading 4202.92.9060 and the applicable rate
of duty is 19.3 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 negotiations and
changes, we suggest that your client 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, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division