CLA-2 RR:CR:TE 966503 BAS
Lars-Erik A. Hjelm, Esquire
Akin Gump Strauss Hauer & Feld, LLP
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036-1564
RE: Reconsideration of HQ 965421, August 15, 2002; Classification of Plastic Pet Carriers
Dear Mr. Hjelm:
This is in reply to your letter, dated April 9, 2003, on behalf of T.F.H. Publications (TFH) to the Port Director of New York/Newark requesting reconsideration of Headquarters Ruling Letter (HQ) 965421, dated August 15, 2002, concerning the tariff classification of the Nylabone Fold-Away Pet Carrier. On September 3, 2003, a conference took place between you and Headquarters personnel.
FACTS:
The articles under consideration are four styles of pet carriers made of injection molded plastics identified as item numbers NDC 100, NDC 101, NDC 102, and NDC 103. The items are described in the shipping invoice as “Mobile Pet Habitats" and they 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 pet. No sample was provided. The pet carriers at issue are Nylabone® Products, a registered trade name of TFH Publications, Inc., the vendor in this transaction. The pet carriers under consideration are "Nylabone Fold-Away Pet Carriers" illustrated at www.nylabone.com. The two smaller pet carriers are described as having top loading doors. All four styles appear to
have metal cage doors in the front and back. The description for each item also states that the pet carrier: Meets domestic and international airline safety standards.
You state in your letter that in early 2001 TFH conducted an internal review of its import operations, during the course of which it discovered that, it erred in classifying its imports of the pet carriers under subheading 9406.00.8050, HTSUSA. Consequently TFH submitted a valid prior disclosure to the Port Director of the Los Angeles/Long Beach Seaport on April 11, 2001, which it supplemented with a final disclosure report on June 11, 2001. In the final disclosure report, TFH claimed that the Nylabone Fold Away Pet Carrier was properly classifiable under subheading 3926.90.98, HTSUS, and made a voluntary tender with the report. On January 4, 2002, the Port Director, per the Fines, Penalties and Forfeitures Director, issued a decision accepting the voluntary tender and the claim that the Nylabone Fold Away Pet Carrier was properly classifiable under subheading 3926.90.98, HTSUS. You argue that because Customs, now the Bureau of Customs and Border Protection (CBP), agreed that classification was proper under subheading 3926.90.98, HTSUS, TFH has since classified imports under this subheading and has relied on the applicable duty rate of 5.3% ad valorem.
In addition, you submit that TFH recently learned that CBP’s Office of Regulations & Rulings (OR&R) issued HQ 965421, dated August 15, 2002, in which CBP rejected a protestant’s claim that essentially the same four pet carriers at issue here were properly classifiable under subheading 3926.90.98, HTSUS, and classified the carriers instead in subheading 4202.99.9000, HTSUSA, which provides for "Trunks, suitcases…: Other: Other: Other." You argue that HQ 965421 should be revoked and that the pet carriers should be classified in subheading 3926.90.98, HTSUSA, the provision for "Other articles of plastic: Other: Other.”
ISSUE: Are the subject pet carriers classified under heading 3926 HTSUSA; which covers other articles of plastics; or under heading 4202, as specially shaped or fitted containers which protect and carry pets?
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
Heading 4202, HTSUSA, covers the following: 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, 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:
[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 or 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.
You submit that unlike any of the exemplars enumerated in Heading 4202, HTSUSA, the essential characteristic and purpose of the Nylabone Foldaway Pet Carriers is to house living breathing, animate beings during transport and home crate training. 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 found that by virtue of ejusdem generis the residual provision for "similar containers" in heading 4202, HTSUS, is to be broadly construed. The Court also found that the rule requires only that the imported merchandise possess the essential character or purpose running through all of the enumerated exemplars. 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 none of the exemplars in heading 4202 is explicitly designed to carry living beings, we have long considered pets to be personal property for tariff classification purposes. See, e.g., HQ 964742, dated January 2, 2001.
The exemplars in heading 4202, HTSUSA, are unified by the fact that they are designed to organize, store, protect and carry personal property. The Nylabone Pet Carriers, similarly, are designed to protect and carry personal property. While a trunk or suitcase is designed to organize, store, protect and carry personal property such as clothing, the pet carrier is designed to carry personal property with special needs. The Nylabone website indicates that its Fold Away Pet Carrier meets international and domestic airline safety rules, which shows that the product is designed and intended to carry, protect and store animals in connection with air travel. The Nylabone website also advertises that a pull cord with handle and wheels are sold separately. The availability of wheels for the product is further evidence that it shares transport-related characteristics with the exemplars in 4202.
You rely on SGI, Inc. v. United States, 22 F.3d 1488 (Fed. Cir. 1997), in which the Court of Appeals for the Federal Circuit (CAFC) considered the tariff classification of portable plastic coolers designed for the storage and transport of food and beverages. In SGI, CBP argued that the merchandise was properly classified under heading 4202. SGI maintained that the coolers were not similar to the exemplars in heading 4202 and that they therefore were classifiable in chapter 39 based on their plastic composition. The Court held that the proper classification for the cooler bags was 3924.10.50, HTSUSA, because bags used to store food and beverages were found not to be ejusdem generis with the exemplars of heading 4202. Similarly you submit that because none of the eo nomine exemplars listed in heading 4202, HTSUSA, are used for storing or carrying pets or animals, the pet carrier cannot be considered ejusdem generis with the exemplars listed in heading 4202, HTSUSA.
Your argument, however, fails to address a significant part of the court’s rationale in reaching its conclusion that the SGI bags were properly classified in heading 3924, HTSUSA. That is, the alternative classification under HTSUS presented by SGI encompasses exemplars whose purpose is to contain foodstuffs. We note that the EN to heading 3924 now specifically mention “food storage containers.”
The instant case is significantly distinguishable from SGI. The alternative classification under heading, 3926, HTSUSA, does not relate to the storage, protection or transport of pets or animals. The EN to heading 3926, HTSUSA, do not mention any exemplars which are unified by the characteristic that they are used to carry animals or pets. Accordingly, the Court’s reasoning for precluding SGI’s portable, soft sided, vinyl coolers from heading 4202, HTSUSA, is inapplicable to the instant case. Unlike SGI, the basket provision you propose is not more specific than the heading 4202 provision.
You submit that the pet carriers are not specially shaped or fitted to contain any particular type of animal. You argue that because the Nylabone Foldaway Pet Carrier is not specially shaped to hold a specific animal, the EN preclude classification under heading 4202. The EN to heading 4202 state that the expression “similar containers” in the first part of heading 4202 includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories. Your argument is based on a particularly restrictive interpretation of “specially shaped or internally fitted.” It would be hard to imagine a container for a pet that was molded to the exact shape of a dog, for example. More importantly, the pet or other animal could not be humanely or safely carried in a plastic container that was specially shaped in such a restrictive manner. The four sizes of the Nylabone Pet Carrier are as specially shaped as is appropriate given the nature of the property to be contained therein.
The Nylabone Pet Carriers are specially fitted to carry pets. Websters II New College Dictionary, 1999 provides, in pertinent part, the following definition for fit or fitted: ….”To equip: outfit”… Having metal grid doors in the front and back, the pet carriers are specially fitted or equipped to carry pets.
Exemplars listed in the EN to heading 4202 include hat boxes. A hat box is considered to be specially shaped, yet it generally does not conform to the exact shape of a hat. A hat box is generally a round box used to store, protect and/or transport a hat. The pet carrier is a rectangular shaped container fitted with sides and doors for ventilation and easy placement, removal and visibility of an animal, its food and water. Such fittings and features enhance the container’s purpose to protect, transport and/or temporarily store a pet.
CBP 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 each pet carrier was 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. In NY D81836, dated September 9, 1998, CBP classified a pet carrier made of molded plastic in heading 4202.99. Likewise, in NY H83395, dated July 13, 2001, we 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 CBP 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 exemplars enumerated in 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 pets of various sizes. The molded plastic pet carriers are distinctly designed and constructed to provide protection for an animal traveling
within it. They are containers designed and constructed, like the exemplars of heading 4202, to provide storage, protection and portability for personal property, in this case, a dog, cat or other animal.
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 properly classifiable in subheading 4202.92, HTSUSA. Subheading 4202.99, HTSUSA, is a provision appropriate for articles with outer surfaces of materials "other" than textile or plastic sheeting or of materials wholly or mainly covered with paper. 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, generally, are fitted to hold inanimate contents, such a characteristic is not required for a 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 are specially shaped and fitted to provide comfort, storage and protection for transported pets.
HEADING 3926, HTSUSA
Finally, we disagree with your contention that the subject pet carriers are classifiable under heading 3926, HTSUSA. The EN to heading 3926 indicate that the heading is a 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 similar to containers specifically provided for in heading 4202, HTSUSA, they are precluded from classification in heading 3926, HTSUSA.
The acceptance of TFH’s voluntary tender by the FP&F office at the Port of Los Angeles does not serve as controlling legal precedent for the proposition that the Nylabone Foldaway Pet Carrier is properly classified under heading 3926, HTSUSA. HQ 965421, dated August 15, 2002, is the controlling legal precedent.
HOLDING: HQ 965421, dated August 15, 2002, is hereby affirmed. 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 general column one rate of duty is 20 percent ad valorem.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division