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HQ 960184




September 4, 1997
CLA-2 RR:TC:TE 960184 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9060

Debra J. Conner, Esq.
Schenker International, Inc.
4700 Lima Street
Denver, CO 80239-0945

RE: Request for Reconsideration of PD A88672; insulated casserole dish caddie bag; merchandise is ejusdem generis with containers of heading
4202, HTSUS

Dear Ms. Conner:

This is in response to your letter, dated January 6, 1997, on behalf of your client, Tops of Rockies Marketing, requesting reconsideration of Port Decision (PD) A88672, dated November 6, 1996, which classified an insulated casserole dish caddie bag in heading 4202, Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise at issue is a casserole dish caddie bag, measuring approximately 3 inches by 10 inches by 16 inches, with an outer surface of PVC plastic sheeting. The bag features two interior pouch pockets with hook and loop type fasteners and two webbed textile strap handles. In PD A88672 the bag was classified in heading 4202, HTSUS. You disagree with that classification. You state in your submission that "the essential character of the server casserole dish caddie is as a plastic tableware item used to maintain either heat or cold while serving food" and that "the proper customs classification of this item would be somewhere within the 3924 tariff chapter, due to its' plastic construction and the fact that that is where tableware, kitchenware, trays and other food service items are classified".

ISSUE:

Whether the subject merchandise is properly classified in heading 4202, HTSUS, or heading 3924, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, in the order of their appearance.

Heading 3924, HTSUS, provides for, among other things, tableware, kitchenware, other household articles and toilet articles, of plastic. You assert in your submission that the proper classification for the subject merchandise is heading 3924, HTSUS. Enumerated among the exemplars at the subheading levels to heading 3924, HTSUS, are such articles as salt, pepper, mustard and ketchup dispensers, plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy boats and serving dishes. It is clear that the principal function of such articles is not to convey or transport the contents but to function as temporary serving containers. The function of the subject merchandise on the other hand, is not only to allow for short term storage and protection of food, but more importantly, it is designed for the convenience of the individual when transporting food items from one place to another (regardless of how great or small the distance). These are characteristics which are associated with heading 4202, HTSUS, and not heading 3924, HTSUS.

Heading 4202, HTSUS, provides for, 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, 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. 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 Heading 4202 exemplars are...to organize, store, protect and carry various items." The Court also ruled that by virtue of ejusdem generis the residual provision for "similar containers" in heading 4202, HTSUS, is to be broadly construed. Heading 4202, HTSUS, in general, provides for containers used to convey personal articles; these "containers" can be anything designed to transport the assorted personal belongings of an individual. Since the function of the subject merchandise is to carry and store food, it is ejusdem generis with the containers of heading 4202, HTSUS. As such, it is excluded from classification in heading 3924, HTSUS, by virtue of Chapter Note 2(ij) of chapter 39, which states:

This chapter does not cover:

Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202;

In your submission you make reference to the "essential character of the subject merchandise". In HQ 954072, dated September 2, 1993, Customs ruled that a soft-sided insulated cooler bag used to transport food and beverages was classified in heading 4202, HTSUS. Of note, that ruling stated:

When classifying merchandise under the tariff schedule, pursuant to GRI 3, the issue of "essential character" only arises when there are two or more competing headings which equally merit consideration. There is only one heading which provides for the subject merchandise in the instant case; as set forth above, heading 4202, HTSUSA, provides for containers similar to the cooler-bags at issue which are used during travel for the transport of food....

Even if an analysis of the subject merchandise's essential character were relevant, this office is not of the opinion that it is the insulation which imparts this attribute. While we recognize that insulation may play an important role in the use of this article, the fact that it will maintain perishable foods longer than an uninsulated container is not determinative of classification.... The dominant characteristic of the subject article is that the cooler-bag is transportable.... Not all food that is transported will be perishable. It is on this basis that Customs deems the transportability of the subject merchandise, for the convenience of the user, as imparting the motivating impetus for the purchase of this article. Accordingly, classification is based on the article's ability to transport food during travel and not on the fact that the container can maintain food at regulated temperatures.

Similarly, in the case of the subject merchandise, the most appropriate classification for this merchandise is heading 4202, HTSUS, which provides for containers used to convey personal articles. Furthermore, an essential character analysis is not required for the subject merchandise for the reasons discussed above. The subject merchandise, whose function is principally to store, protect and carry the contents placed therein, is properly classified in heading 4202, HTSUS.

HOLDING:

The subject merchandise was properly classified in PD A88672 in subheading 4202.92.9040, HTSUS, which provides for, 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, 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: with outer surface of sheeting of plastic or of textile materials: other: other: other: other.

The applicable rate of duty at the time PD A88672 was issued was 19.5 percent ad valorem. The current classification of this merchandise is in subheading 4202.92.9060 and the applicable rate of duty is 19.3 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service which is updated weekly and is available at the local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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