CLA-2 RR:CR:TE 965421 ttd
TARIFF NO: 4202.99.9000
Port Director
U.S. Customs Service
Los Angeles - Long Beach Seaport
301 East Ocean Boulevard
Long Beach, CA 90802
RE: Decision on Application for Further Review of Protest Number 2704-01-102779; Classification of a Pet Carrier
Dear Sir or Madam:
This is a decision on an Application for Further Review (AFR) of Protest Number 2704-01-102779, timely filed on October 1, 2001, against your decision in the classification and liquidation of molded plastic pet carriers made in China and entered on November 14, 2000.
FACTS:
You classified the pet carriers in subheading 4202.92.4500, HTSUSA, which provides, in pertinent part, for "Trunks, suitcases, vanity cases, attache cases, briefcases, school cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers …; Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other,” with a general column one duty rate of 20 percent ad valorem.
The Protestant claims that the pet carriers should be classified in subheading 3926.90.9880, HTSUSA, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other," with a general column one duty rate of 5.3 percent ad valorem.
The articles under consideration are four styles of pet carriers made of injection molded plastics and identified as item numbers NDC 100 (stock-keeping unit number (SKU #) 018248-10841), NDC 101100 (SKU # 018248-10858), NDC 102 100 (SKU # 018248-10865) and NDC 103 100 (SKU # 018248-10872). The items are described in the shipping invoice as "Foldaway Pet Carrier Mobile Habitat" and vary in sizes which include x-small, small, medium and large. The articles are specially shaped or fitted containers which derive their name from the article they are designed to carry, namely a type of pet. No sample was provided.
According to the stock-keeping unit number (SKU #) for each item, Customs has determined, that the “NDC” in each item number represents Nylabone® Products, an affiliate of T.F.H. Publications, Inc., the vendor in this transaction. Based on additional research, it is presumed that the pet carriers under consideration are "Nylabone Fold-Away Pet Carriers" illustrated at Petco's Website at www.petco.com. The pictures of the two smaller pet carriers reveal top carry handles, while the two larger pet carriers do not. All four styles appear to have metal cage doors in the front and back. Each is described as a "[d]urable container." The description for each item also states that the pet carrier:
Meets domestic and international airline safety standards.
ISSUE:
What is the proper classification of the subject merchandise?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that 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 Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Heading 4202, HTSUSA, covers the following:
Trunks, suitcases, vanity cases, attache case, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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.
The plain language of heading 4202, HTSUSA, includes the named exemplars and similar containers. Additionally, the EN to heading 4202 indicate that the heading covers only the articles named therein and similar containers. The EN further provide, in part:
These containers may be rigid or with a rigid foundation, or soft and without foundation.
[T]he articles covered by the first part of the heading may be of any material. The expression "similar containers" in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting for camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.
The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.). The expression "similar containers" in this second part includes note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewellery rolls, shoe-cases, brush-cases, etc.
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 the Heading 4202 exemplars are … to organize, store, protect and carry various items." The Court also found that by virtue of ejusdem generis the residual provision for "similar containers" in heading 4202, HTSUS, is to be broadly construed. In general, heading 4202, HTSUSA, provides for containers used to convey personal articles; these “containers” can be anything designed to transport assorted personal belongings. While pets are often considered and treated as "part of the family," they must, for legal and tariff classification purposes, be considered goods which are the property of the pet owner. In Headquarters Ruling Letter (HQ) 964742, dated January 2, 2001, we determined that a "Petpocket™" pet carrier is similar to the containers enumerated in the second half of the first part of heading 4202, HTSUSA, which generally are shaped or fitted to carry certain items of personal property. While pet carriers are not named in heading 4202, nor suggested in the EN as example containers, it need not be shown that a particular container specifically matches these descriptions.
Customs has consistently classified pet carriers, composed of either textile materials or molded plastic, as articles similar to those named in heading 4202, HTSUSA. In HQ 958035, dated October 4, 1995, we classified a soft-sided, textile, pet carrier bag with a double strap handle and textile shoulder strap in subheading 4202.92, HTSUSA. In both HQ 964742 (cited above) and HQ 958035, we determined that the particular pet carrier was found to be a specially shaped and fitted container designed to provide storage, protection and portability for personal property, i.e., a dog or cat. See also New York Ruling Letter (NY) 805859, dated January 24, 1995; NY 804677, dated December 2, 1994; and HQ 085514, dated October 3, 1989. Moreover, in New York Ruling Letter (NY) D81836, dated September 9, 1998, Customs classified a pet carrier made of molded plastic in heading 4202.99. Likewise, in NY H83395, dated July 13, 2001, we again classified a pet carrier with a top and bottom of molded plastic in heading 4202.99, HTSUSA. See also NY I83294, dated July 16, 2002, wherein Customs classified a plastic pet carrier under subheading 4202.99.9000, HTSUSA. Accordingly, classification of goods in subheading 4202.99 indicates a finding that the cases are similar to the exemplars enumerated in the second half of the first part of the heading, i.e. spectacle cases, binocular cases, camera cases, etc., which generally are specially shaped and fitted to contain specific articles.
In this case, we find that the subject pet carriers are indeed specially shaped and fitted containers designed to carry different pets of various sizes. The subject molded plastic pet carriers are distinctly designed and constructed to provide protection for an animal when traveling within it, as evidenced by their satisfying domestic and international airline safety standards. Thus, they are specially shaped and fitted containers designed and constructed, like the exemplars in heading 4202, to provide storage, protection and portability for personal property, e.g., a dog or cat. The subject pet carriers derive their name from the animal they are designed to contain and provide the same useful functions as a container within the scope of heading 4202, HTSUSA.
Since subheading 4202.92, HTSUSA, covers, in part, containers with outer surface of sheeting of plastic or of textile materials and the subject pet carriers are constructed of molded plastic, they are not made with an outer surface of sheeting of plastic. Accordingly, the subject pet carriers are not properly classifiable in subheading 4202.92, HTSUSA.
Subheading 4202.99, HTSUSA, is a residual provision appropriate for certain articles that are classifiable in heading 4202, HTSUSA, with outer surfaces of materials “other” than textile or plastic sheeting. As such, the provision encompasses some of the articles enumerated in the second half of the first part of heading 4202, but it is not limited thereto. While these exemplars are generally fitted to hold inanimate contents, such a characteristic is not required of a personal effect for its container to be classified in subheading 4202.99, HTSUSA. See HQ 956888, dated April 10, 1995. The subject pet carriers are constructed of molded plastic and specially shaped and fitted to provide comfort and protection to transported pets. Classification in subheading 4202.99.9000, HTSUSA, is appropriate for the subject molded plastic pet carriers.
Finally, we disagree with the Protestant’s contention that the subject pet carriers are properly classifiable under heading 3926, HTSUSA, which provides for "[o]ther articles of plastics and articles of other materials of headings 3901 to 3914." The EN to heading 3926 indicate that the heading is the basket provision for plastic articles not described more specifically elsewhere in the tariff schedule. Moreover, note 2(ij) to chapter 39 states that the chapter "does not cover … trunks, suitcases, handbags or other containers of heading 4202." As the subject pet carriers are more specifically provided for in heading 4202, HTSUSA, they are precluded from classification in heading 3926, HTSUSA.
HOLDING:
The subject merchandise is classified in subheading 4202.99.9000, HTSUSA, which provides for "Trunks, suitcases, vanity cases, attache case, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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: Other: Other: Other." The applicable rate of duty is 20 percent ad valorem.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, a copy of this decision attached to Customs Form 19 (Notice of Action) should be mailed to the protestant no later than 60 days from the date of this decision. Any additional Applications for Further Review currently being held in abeyance and involving merchandise and issues similar to those of the instant case should be disposed of by your office in a manner consistent with the analysis and holding above. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision.
No later than sixty days from the date of this letter the Office of Regulations and Rulings will make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and by other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division