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HQ 087989


October 29, 1991

CLA-2 CO:R:C:G 087989 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9040

John H. Heinrich
District Director
U.S. Customs Service
300 South Ferry St.
Terminal Island
Room 2017
San Pedro, CA 90731

RE: Decision on Application for Further Review of Protest No. 2704-90-00475 on the classification of Pizza Delivery Pouches

Dear Mr. Heinrich:

This is a decision on application for further review of a protest timely filed on behalf of Delta Trades International, on January 31, 1990, against your decision on the classification of vinyl covered pizza pouches.

FACTS:

The merchandise at issue is a box-shaped textile container, measuring 20 square inches, which has an exterior surface of vinyl and a hook and loop flap closure. A textile loop by which the container may be air dried or stored is stitched onto one corner, and a clear plastic pocket is stitched onto the top flap, where a bill may be inserted. Two air holes riveted along one edge of the bag allow for the escape of moisture. The protestant states that these containers are used to maintain the freshness of pizza delivered to retail customers.

Our inspection of the sample indicates that it has been constructed using three layers of material. A plastic coated material makes up the outer and inner surface of the container, and a layer of insulating material is sandwiched between them. Customs laboratory analysis has determined that the exterior surface is made up of an outer layer of polyvinylchloride (plastic), bonded to an inner layer of expanded polychloroprene (synthetic rubber) which is backed by a textile. The insulating material is cellular polyurethane (plastic) and the inner surface material is plastic coated textile (the plastic side is visible when looking into the interior of the container).

This item was classified and liquidated under HTS 4202.92.9040, which provides for other containers, other than those described as "travel, sports and similar bags." The importer, Delta Trades International, contests this classification. It contends that the goods are properly classified under subheading 3923.29.0000, which provides for articles for the conveyance or packing of goods..., of other plastics, or in the alternative, 3923.90.0000, the residual provision.

ISSUE:

1) Is a plastic coated textile container, with plastic and rubber filling, considered "luggage" under heading 4202, or an article for the conveyance or packing of goods under heading 3923, HTSUSA.

2) If considered composite goods within the meaning of GRI 3, which material provides the essential character for classification under the HTSUSA.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI, taken in order. Where 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 be applied.

The present merchandise is prima facie classifiable in heading 4202, which provides for travel goods, handbags and similar containers. In this instance, the merchandise at issue was entered under subheading 4202.92.9040, which provides for, in relevant part,
traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewellery boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of plastic sheeting, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials: other: with outer surface of plastic sheeting or of textile materials: other: other.

To be classified here, merchandise such as this must be "of...or wholly or mainly covered with" one of the materials set out in the heading. The relevant material in this case is "plastic sheeting." Plastic sheeting is defined by Kirk-Othmer's Encyclopedia of Chemical Technology, Third Edition, under a section which describes film and sheeting materials, as follows:

A film, as defined by the Modern Plastics Encyclopedia and as dealt with for the purposes of this article, is a flat section of a thermoplastic resin or a regenerated cellulosic material which is very thin in relation to its length and breadth and has a nominal thickness not greater than 0.25 mm (see also Film deposition techniques). The same materials in similar configuration but greater thicknesses are classified as sheets. Film and sheet may be used alone, in combination with another thermoplastic, through coating or coextrusion, or as a laminate in combination with paper, aluminum foil, or other film.

Laboratory analysis resulted in a finding that the top layer of PVC plastic has a thickness of 0.32 mm, which thus qualifies it as plastic sheeting. Therefore, the PVC material, which covers the entire exterior surface of the pizza pouch, is considered "wholly or mainly covered with" plastic sheeting in conformity with the terms of heading 4202.

The Explanatory Notes to heading 4202 (EN 42.02), which provide guidance in the interpretation of the tariff at the international level, state, in relevant part, that

This heading covers only the articles specifically named therein and similar containers.

These containers may be rigid or with a rigid foundation, or soft and without foundation.

...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.

The pizza pouch is similar in function to the tobacco pouches or bottle cases listed in the terms of this heading.

4

Such containers are designed to encase and preserve perishable goods for human consumption such as tobacco, liquid refreshments, or pizza, as the case may be. Many of these containers are also designed to be carried with the person on a continuing and repetitive basis. The present article, like the other enumerated containers, is specially designed in size, shape and material, for the carrying of the intended goods.

The protestant contends, however, that the containers at issue are not in pari materia with "luggage" of heading 4202 since the items thereunder are generally intended for the carrying of personal effects during travel. In distinguishing pizza pouches from luggage designed for personal use, the protestant outlines the commercial use of the bag based on the principals of the Court of International Trade in Imperial Packaging Corp. v. United States, 2 CIT 250 (1981) and Headquarters Ruling Letter (HRL) 074113 dated January 24, 1985. The "stream of commerce" analysis employed by the Court, and supported in HRL 074113, involved considerations which were determinative under the former Tariff Schedules of the United States; the current tariff, however, has eliminated the need for such analysis due to its highly specialized, expanded text. Heading 4202 is not limited by any legal text to articles which are sold to and used only by individual consumers. For instance, musicians' carrying cases for instruments, bags used by couriers, and salesman's sample cases may be classified under heading 4202.

Nonetheless, a discussion of the nature of the container at issue is relevant; and, insofar as the containers of 4202 share characteristics which make them ideally suited to be carried with the person on a repetitive basis, discussion of the factors which liken the pizza pouch to the class of articles provided for by heading 4202 is warranted. The present article is similar in many respects to some of the named goods of heading 4202 and the Explanatory Notes: like a shopping bag, it is used to transport various items, including food, to the intended destination, and, like many of the other cases, including cigar cases and jewellery rolls, it is specially designed in size, shape and structure to fit and protect the intended item. An individual carries the case, which is reusable, in order to help transport and protect the contained goods. For these reasons, the similarity between the pizza pouch and the articles of heading 4202 is evident, and we conclude that classification thereunder is appropriate.

The letter submitted as Exhibit 3, a pre-classification ruling by the Canadian Department of National Revenue (Customs and Excise) does not constitute binding precedent in this matter. It should also be noted that the classification of this item was strictly preliminary, and that the protestant was advised to notify his client of this fact, as well as the possibility of further review and amendment.

Heading 3923, HTSUSA, which provides for articles for the conveyance and packing of goods, including sacks and bags, does not properly encompass the goods at issue [Chapter Note 2 of heading 4202 gives one indication of the drafters' intended distinction between sacks and bags of heading 3923 and articles of heading 4202: it excludes, under part (a), bags made of sheeting of plastics, whether or not printed, with handles, not designed for prolonged use (heading 3923). Since the present item has no handles, is durable and designed for repetitive use, classification under heading 3923 is deemed to be inconsistent with the Chapter Note above]. In accordance with GRI 1, therefore, heading 4202 specifically provides for the article at issue, thereby superceding classification under heading 3923, HTSUSA.

HOLDING:

The merchandise at issue is properly classified under subheading 4202.92.9040, which provides for traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches tool bags, sports bags, bottle cases, jewellery boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of plastic sheeting, of textile materials, of vulcanized fiber or of paper board, or wholly or mainly covered with such materials: other: with outer surface of plastic sheeting or of textile materials: other: other, other, dutiable at the rate of 20 percent ad valorem.

As the rate of duty under the classification indicated above is identical to the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the Form 19 notice of action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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