CLA-2 RR:CR:TE 962406 SS
Thomas J. O’Donnell, Esquire
O’Donnell, Byrne & Williams
20 North Wacker Drive, Suite 1416
Chicago, Illinois 60606
Re: Pizza Delivery Bags; SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997); 4202, HTSUS; 6307.90.9989 HTSUSA
Dear Mr. O’Donnell:
This letter is in response to your request on behalf of your client, Service Manufacturing Corporation, dated November 6, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of pizza delivery bags manufactured in China. A sample was submitted with your request.
FACTS:
The sample submitted is described as a “soft-sided, insulated pizza delivery bag”. The importer submits that the pizza delivery bags will be used by a national pizza delivery chain. The pizza bag is square in shape and measures approximately 18 inches by 17-1/2 inches by 6-1/2 inches. The article is constructed of three layers of materials. The outer layer and inner layer is made of a nylon woven fabric which has been coated on one side with a clear coating of plastic. The uncoated textile surface faces outwards. The middle layer consists of a very thin nonwoven man-made fiber fabric and man-made batting approximately 1/2 to 1 inch thick which acts as an insulating and cushioning layer. The pizza bag features a flap top opening with an adjustable textile hook and loop closure. The exterior of the flap has a clear PVC pouch to hold the pizza delivery order or receipt. The pizza bag also has contrasting capping on all the outer seams. There are three 7 inch nylon straps attached to the bottom side of the pizza bag which the delivery person fits on to his or her arm. This provides a secure grip, while ensuring that the pizza is held upright. There are two hook and loop fasteners located inside the bag at the end opposite from the opening. The importer submits that the hook and loop closures are designed to hold a heating element that will keep the pizza warm and prevent the pizza from “sweating.” The importer did not indicate that the heating element would be included when imported.
ISSUE:
What is the proper classification for the pizza delivery bags?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.
The classification of a similar article, a portable, soft-sided, insulated cooler bag, was recently 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. Without discussion of the exemplars of Heading 4202, HTSUSA, which 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, HTSUSA, the provision for “Tableware, kitchenware, other household articles . . . of plastics: Tableware and kitchenware: Other.” The Court stated that subheading 3924.10.50, HTSUSA, “does encompass exemplars that are ejusdem generis with the coolers because their purpose is to contain food and beverages.” Following the position of the Court, containers which are designed primarily for the storage of food or beverages at a desired temperature over a period of time are excluded from classificiation within Heading 4202, HTSUSA, as an article not of a kind similar to the exemplars. Accordingly, the insulated pizza delivery bags which are designed primarily for the storage of pizzas at a desired temperature over a period of time are precluded from classification in Heading 4202, HTSUSA.
This office concluded that the CAFC’s decision in SGI should be implemented. We noted that the classification of pizza delivery pouches was also being reconsidered as a result of Delta Trades International v. United States, Court No. 90-06-00293, a case which was suspended under SGI. Instructions were issued to Customs field offices on March 18, 1998 (and approved for dissemination to members of the importing community), which expressly extended the principles of the CAFC’s decision to pizza delivery pouches. Although pizza delivery pouches had previously been classified under heading 4202, HTSUSA, Customs recognized that heading 3923, HTSUSA, covers containers used for contents of a more commercial nature than containers of heading 4202, HTSUSA. We noted that heading 3923, HTSUSA, provides for plastic articles for the conveyance or packing of goods and that the tariff subheading language includes foodstuff-related exemplars such as carboys, bottles, flasks and similar articles. Furthermore, the EN to heading 3923, HTSUSA, refer to boxes, cases, and bags for the “conveyance of all kinds of products,” which indicates that the heading is sufficiently broad to encompass articles designed for the commercial delivery of pizza. Accordingly, we directed as follows:
“Therefore, pizza delivery pouches should be classified in subheading 3923.10.00, HTSUS, the provision for ‘Articles for the conveyance or packing of goods, of plastics . . . : Boxes, cases, crates and similar articles.’ In the event that such pouches have an outer surface composed in whole or in part of textile materials, the articles should be classified in subheading 6307.90.9989, HTSUSA.”
In light of the principles of the SGI decision and the instructions noted above, the subject pizza delivery bags with outer surface of textile are classified in subheading 6307.90.9989, HTSUSA.
It has been suggested that the classification of textile pizza delivery bags under subheading 6307.90.9989, HTSUSA, is inconsistent with the classification of plastic pizza delivery bags which are classified under subheading 3923.10.0000, HTSUSA. Since the plastic pizza delivery bags are classified under the provision for plastic containers, the argument is that textile pizza delivery bags should be classified under the provision for textile containers found in subheading 6305.39.0000, HTSUSA, and not under subheading 6307.90.9989, HTSUSA, the provision for other textile articles. We find the argument unpersuasive.
Heading 3923, HTSUSA, provides for “[a]rticles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics.” Specifically, subheading 3923.10.0000, HTSUSA, covers “[b]oxes, cases, crates and similar articles.” The EN to heading 3923, HTSUSA, broadly state that the heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products.
There is no parallel provision for articles for the “conveyance” of goods in Section XI, the textile section, of the HTSUSA. Furthermore, there is no parallel textile provision for boxes, cases, crates or similar articles. Heading 6305, HTSUSA, merely provides for textile sacks and bags of a kind used for the “packing” of goods. The EN to Heading 6305, HTSUSA, indicate that the heading covers textile sacks and bags of a kind normally “used for the packing of goods for transport, storage or sale.” All of the exemplars are illustrations of containers used for the packing of bulk quantities of goods. The pizza delivery bags, however, are used primarily to keep one or two individual pizzas hot during delivery to customers. We do not find that the pizza delivery bags are used for the “packing” of goods within the meaning of the heading 6305, HTSUSA. We emphasize that heading 3923, HTSUSA, relates to the “conveyance or packing” of goods while heading 6305, HTSUSA, is concerned only with the “packing” of goods. Pizza delivery bags are used for the conveyance of pizzas. Since there is no provision specifically for textile articles for the conveyance of goods, we find that the classification of textile pizza bags under heading 6307, HTSUSA, is consistent with the classification of plastic pizza delivery bags under heading 3923, HTSUSA.
HOLDING:
The pizza delivery bags are classified in subheading 6307.90.9989, HTSUSA, the provision for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” The general column one duty rate is seven percent (7%) ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division