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HQ 950572




DECEMBER 11, 1991

CLA-2:CO:R:C:M 950572 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7310.29.00, HTSUS

District Director of Customs
209 Federal Building
Duluth, Minnesota 55802

RE: Wire Bread Carriers With Plastic Liners; Containers for the Commercial Conveyance and Packing of Goods; PRD 3604-91-100017

Dear Sir:

This is our decision on Application for Further Review of Protest No.3604-91-100017, dated September 20, 1991, filed on behalf of Waldensian Bakeries, Inc., pertaining to the tariff classification of bread carriers. A sample was provided.

FACTS:

The merchandise in issue is certain containers designated the B-1 Drader steel bread carrier with PL-1 plastic liner, from Canada. The submitted sample consists of a rectangular steel frame with a cross braced open bottom and two parallel sides of steel wire construction that can serve as handles. The bottom of the frame is configured to permit stacking. A removable flat plastic sheet of open weave construction lies on the bottom of the frame for added support. The submitted sample measures 28 7/8 in. x 23 in. x 5 in. and represents containers used on bread trucks to transport bread from the bakery to retail stores.

Entry was made under the provision for tanks, casks, drums, cans, boxes and similar containers for any materials, of iron or steel, of a capacity not exceeding 300 liters, in subheading 7310.29.00, Harmonized Tariff Schedule of the United States (HTSUS). The rate of duty is free. You noted that the containers were not of the type provided for in heading 7310 and liquidated the entry under the provision for other articles of iron or steel, in subheading 7326.90.90, HTSUS, dutiable as a product of Canada under the rate of 3.9 percent ad valorem.

ISSUE:

Whether the bread carriers in issue are in essential character of steel or plastic; whether they are containers of heading 7310; whether heading 7310 or heading 7326 is relatively more specific.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

GRI 3(a) states with respect to goods that are, prima facie, classifiable under two or more headings that the most specific description shall prevail over less specific provisions. However, when two or more headings each refer to part only of the materials, substances or components contained in composite goods, those headings shall be regarded as equally specific. GRI 3(b) states in part that composite goods made up of different components, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the component which gives them their essential character, insofar as this criteria is applicable. For purposes of Rule 3(b), composite goods made up of different components shall be taken to include those with separable components, provided they are adapted one to the other, are mutually complementary, and together they form a whole which would not normally be offered for sale in separate parts.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80.

The bread carriers consist of metal and plastic components. They are composite goods for tariff purposes. Heading 3923 covers articles for the conveyance or packing of goods, of plastics. Boxes, cases, crates and similar containers are among the articles covered. Heading 7310 covers tanks, drums, cans, boxes and similar containers, of iron or steel. Because both - 3 -
headings refer to part only of the components that make up the bread carriers here, the provisions are regarded as equally specific. Under Rule 3(b), therefore, the bread carriers are classifiable according to the component which gives them their essential character.

Because of their weight, value, and role in relation to the use of the goods, the steel frame and sides/handles impart the essential character. The bread carriers are therefore to be classified as if consisting only of steel.

Regarding the applicability of heading 7310, ENs at p. 1022 indicate, in part, that the heading covers sheet or plate iron or steel containers of the stated capacity, but of a size easily moved or handled, commonly used for the commercial conveyance and packing of goods (Emphasis added). The bread carriers consist of a sheet or plate frame with metal wire sides or handles. The frame actually holds the bread. The bread carriers are therefore within the terms of this EN. Moreover, they are rigid, typically rectangular receptacles, similar to the boxes of heading 7310. Heading 7310 is, prima facie, relatively more specific than heading 7326, which covers iron or steel articles not more specifically covered elsewhere in the HTSUS.

HOLDING:

Under the authority of GRI 3(a), the B-1 Drader steel bread carriers are provided for in heading 7310. Actual classification is in subheading 7310.29.00, HTSUS. The rate of duty is free. The protest should be allowed.

A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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