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HQ 964340




May 14, 2001

CLA-2 RR:CR:TE 964340 ASM

CATEGORY: CLASSIFICATION

Tariff No.: 4202.92.9036

Susan T. Mitchell
Area Director
U.S. Customs Service
JFK International Airport
Building 77
Jamaica, NY 11430

RE: I.A. #00/17; Classification of three textile cases used to carry cooking accessories; Heading 4202, HTSUSA

Dear Ms. Mitchell:

This ruling is in response to your memorandum dated June 30, 2000, requesting Internal Advice regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of three textile cases used to carry cooking accessories. Samples were forwarded for examination. The Request for Internal Advice was initiated by the Area Director of JFK Airport, on behalf of Robert J. Leo, Attorney, Meeks & Sheppard, for Mercer Tool Corp. (“Importer”). A meeting took place on November 8, 2000, with Mr. Leo and Mr. Michael Wallick, President, Mercer Tool Corporation, to further address the classification of the subject cases. An additional written submission was timely received by this office on December 4, 2000, and is also considered in this ruling.

FACTS:

The Importer identifies three styles of cases two of which are described as the “Pocket Knife Case” (Models 30217 and 30110) and one of which is described as the “Pocket Knife Roll”. All three cases are sold under the “Chef® Cutlery” brand name and are manufactured of textile materials consisting of 55 percent ramie and 45 percent polyester fibers.

According to the Importer’s submission, the two “knife cases” and “knife roll” are designed and used by chefs and students to carry various implements and accessories used by professional chefs, including cutlery, spoons, spatulas, wire whips, turners, tongs, other utensils, writing instruments, recipe cards, and other professional articles. The “Pocket Knife Cases” have a depth of 1 ¾ inches to 2 ½ inches. Model 30217 has 17 pockets and Model 30110 has 10 pockets and both have a hard interior shell covered by textile material. Each has a handle for ease of carrying, and each is secured by plastic clips and straps. The “Pocket Knife Roll” does not have a handle and is secured by rolling the container into itself while fastening the case with hook and loop type strips. The “Pocket Knife Roll” has 7 pockets and a depth of ¾ inch. Each of the three styles has a fabric overlay that is folded down over the pockets to protect the articles contained therein. Hook and loop type fasteners secure the overlay. Articles may also be placed in the outside zippered pocket of Model 30217 and Model 30110. The pocket knife roll does not contain an outside zippered pocket.

The importer has stated that they order the subject cases, through an agent, from a foreign manufacturer, based on orders placed by their customers. The importer asserts that 98-99% of their customers are cooking schools. After importation, the cases are transferred to the importer’s warehouse and filled to the customer’s specifications. Thus, each of the cases is customized to the school’s specifications to contain approximately 4 knives and an average of 12 or more cooking utensils.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 4202, HTSUSA, specifically covers various cases and containers, and provides as follows:

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. (emphasis supplied).

The EN to 4202 indicates that the heading covers only the articles specifically named and similar containers. Heading 4202, HTSUSA, contains an eo nomine provision for “cutlery cases” at the heading level, however, the Importer suggests that the subject merchandise is not just a cutlery case because it is designed to hold many types of culinary tools. Thus, Customs must determine whether the merchandise is provided for, eo nomine as a “cutlery case”, or ejusdem generis as a “similar container” under heading 4202, HTSUSA, or if it is otherwise specifically enumerated at the eight digit level for 4202, HTSUSA.

The Importer argues that all three of the subject cases are classifiable under subheading 4202.12.60, HTSUSA, as “occupational luggage cases.” In support of their argument that the TSUS is to be used for guidance in the present ruling, the Importer cites HQ 950430, dated January 28, 1992, which applied the holding of a court case on the classification of a decorated ceramic beer stein under the TSUS as instructive in determining the classification of a ceramic stein under the HTSUSA. HQ 950430 set forth a provision of the conference report to the 1988 Omnibus Trade Bill which states: “on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUSA, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUSA.” See, H. Rep. No. 100-576, 100th Cong., 2D Sess. 548, 550 (1988).

It is important to note, however, that in HQ 950430 Customs went on to qualify the basis for their decision by stating that since the subject nomenclature in the TSUS and HTSUS was essentially the same and the articles at issue in both the court case and ruling were essentially the same, the court case did lend support as to the correct classification under the HTSUSA. Thus, we disagree with the Importer’s premise that the TSUS ruling, HQ 831377, should be applicable in this instance because rifle cases are not essentially the same as the chef cases that are the subject of this ruling.

The Importer has also cited several Customs Rulings in which various containers were classified as “occupational luggage” under subheading 4202.12.8030, HTSUSA. Although these rulings involved the classification of a variety of cases, i.e., artist’s portfolio, “Teacher’s Magnetic Kit”, workman’s tool case, and cosmetologist’s “Sale Support Duffel Bag”, not one involved the classification of a chef’s case for carrying cutlery or other culinary tools (see, respectively, NY rulings D83404, dated December 31, 1998, D83027, dated October 9, 1998, C82981, dated January 14, 1998, and E81684, dated May 28, 1999). Therefore, these rulings are not on point and do not support the Importer’s proposed classification of the subject merchandise as “occupational luggage” under subheading 4202.12, HTSUSA.

The Importer asserts that the case of DRI Industries v. U.S., 657 F. Supp. 528, 532 (CIT 1987) (hereinafter DRI) provides support for classification of the subject merchandise as “occupational luggage” under subheading 4202.12, HTSUSA. The case of DRI addressed the issue of whether a handyman’s metal tool chest and cabinet were properly classifiable under a provision for “luggage”, item 706.62, Tariff Schedules of the United States (TSUS). In holding that the tool chest was correctly classified as “luggage” under item 706.62, TSUS, the court determined that while portability was not the primary design of the article, it still shared characteristics of the named exemplars in the provision because it had been designed to organize, store, and protect tools.

We do not agree that the case of DRI is relevant to the classification of the subject merchandise. In the instant case, we are focusing on the proper classification of textile cases designed to hold cutlery and various cooking utensils. The DRI case involved the classification of a metal tool chest designed to contain tools used by electricians, plumbers, etc., where the key issue was whether or not the limited portability of the tool chest would preclude it from classification as “luggage” under item 706.62, TSUS. The DRI case is not on point because the merchandise and issues addressed by the court are not analogous to the matter now in question. Our concern is not whether the subject cases are portable, as clearly they are, but whether the merchandise is correctly classified in the “occupational luggage” provision under subheading 4202.12.60, HTSUSA, or the provision for “cutlery cases” or “similar containers” under subheading 4202.92.90, HTSUSA.

The Importer cites the case of Len-Ron Manufacturing Co., Inc. v. United States, 118 F. Supp 2d 1266 (CIT 2000) as supporting their proposed classification for the merchandise pursuant to the application of Additional U.S. Rule of Interpretation 1(a). The Importer asserts that the subject cases are of a “class or kind” with “occupational luggage” cases. In the Len-Ron case, the Court held that certain plastic cosmetic cases were classifiable as “vanity cases” under subheading 4202.12.20, HTSUSA, because
this provision more specifically described the cosmetics bags at issue than a competing provision, pursuant to a GRI 3(a) analysis. In reaching their decision in the Len-Ron case, the Court addressed the application of Additional U.S. Rule of Interpretation 1(a) in determining the “class or kind” of merchandise to which imported goods belong and noted that :

When use is invoked by the language of the HTSUS, the Court turns to Additional U.S. Rule of Interpretation 1 (USRI 1), which states “a tariff classification controlled by use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” In this case, the Court must determine whether the cosmetics bags are of ‘that class or kind to which the imported goods belong.’To make this determination the Court traditionally has used a totality of the circumstances test, specifically considering the factors such as: the physical characteristics of the merchandise; the expectation of ultimate purchasers; the channels of trade; and use. See Carborundum, 536 F.2d at 377. However, in 1999, the Federal Circuit appears to have renamed the traditional test to determine “class or kind” under USRI 1 under the guise of ‘commercial fungibility.’ Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999) (‘We construe the [HTSUS] to call for a determination as to the [class or kind] of goods that are commercially fungible with the imported goods.’).

In applying Additional U.S. Rule of Interpretation 1(a) to determine the “class or kind” of goods to which the imported goods belong, the principal use is determined by applying the test set forth in United States v. Carborundum Co., 536 F.2d 373 (CCPA1976), which has more recently been referred to as the standard of “commercial fungibility” as set forth in the case of Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999) (hereinafter Primal Lite). As such, it is necessary to determine whether the cases at issue have a use, which is commercially fungible with that which defines the class or kind described in one of the subheadings now being considered.

While the Importer maintains that these cases are designed to carry a variety of culinary tools, the very names of these three cases, “Pocket Knife Case” and “Pocket Knife Roll” evidence a commercial fungibility with the class or kind of “cutlery cases” which are eo nomine provided for at subheading 4202.92, HTSUSA. These names advertise and invite the trade to use the subject cases to store, protect and carry expensive sets of professional quality knives. Not only would such knives require a protective case (necessary protection for both the knives and the carrier), but they would also require portability to allow the Chef to easily transport his/her own cutlery. Regardless of the claims by the importer that these cases are primarily sold to cooking schools and customized with a variety of culinary tools per the needs of each school, these very cases are advertised on pg. 38 of the “Chef® Revival” 2000-2001 marketing catalogue as “cutlery carrying cases.” As indicated in this catalogue, “Chef® Cutlery” is the largest supplier of knife cases in the U.S. Thus, we view this as clear evidence
that the cases have been primarily designed and marketed for use as “cutlery cases” intended to safely transport a set of professional quality knives. Although, the importer has successfully marketed a secondary use for these cases, the fact remains that the original design, concept, and marketing of these cases is for use as “cutlery carrying cases”, a fact which is clearly illustrated by the “Chef® Revival” catalogue.

All three cases are constructed of a tightly woven fabric that has been reinforced, on the inside, with a plastic coating that makes the material extremely durable. Each case has an inside flap (constructed of the same plastic-coated material), with hook and loop type fastening tabs, that entirely covers the inside of the case thus securing the contents and providing additional protection from the knife blade. In addition, the plastic coating makes the woven material relatively impervious to the knife blade and also provides some waterproofing on the coated side of the inside flap, which has been designed to face the storage pockets. Each of the storage pockets has been constructed with the same protective plastic-coated woven fabric. Furthermore, the “Pocket Knife Cases” (Model 30217 and Model 30110 ) have been constructed with a hard interior shell which provides additional protection against the knife blade. At the time of importation, the cases prominently display a silver metallic label bearing the trade name, “Chef ® Cutlery”.

Although it is our determination that the subject cases are primarily intended for use as cutlery cases for knives, upon review of the evidence submitted, we concede that these cases may also serve a secondary function to the ultimate purchaser by carrying various other culinary tools and accessories. As such, they would be provided for under heading 4202, HTSUSA, as “similar containers” to the “cutlery cases” which are eo nomine provided for in the heading. However, in order to classify the subject goods as “similar” under 4202, HTSUSA, we must look to factors, which would identify the merchandise as being ejusdem generis (of a similar kind) to those specified in the provision.

In the case of Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867(1994), aff’d. 69 F. 3d 495 (Fed. Cir. 1995), the Court of Appeals stated as follows:

As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.

In affirming the trial court’s decision, the Court of Appeals found that, with respect to the residual provision of “similar containers” of 4202, the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, HTSUSA., i.e., “to organize, store, protect and carry various items.” Without question, the subject cases have been designed to “organize, store, protect and carry” cutlery and other culinary tools. Each case has pockets of various sizes to securely hold, organize, store, and protect knives/culinary tools of many different sizes allowing the user to safely carry these items to school or work.

In classifying the merchandise under the residual provision of “cutlery cases and similar containers : Other: With outer surface of sheeting of plastic or of textile materials” of subheading 4202.92, HTSUSA, we find that there is no other provision which would more specifically describe this merchandise. It has already been clearly established in the “Chef® Revival” marketing catalogue that these cases are designed, advertised, and bear trade names that support a finding that they are to be used as cutlery cases. However, at the time of importation, these cases are intended to hold not only knives, but a variety of other culinary tools as well. As such, they are “similar containers” to cutlery cases.

The class of “occupational luggage” under subheading 4202.12, HTSUSA, which provides for “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers” describes a broad category of cases that may be used to carry the tools of an electrician, plumber, or cosmetologist. In contrast, subheading 4202.92, HTSUSA, includes specially shaped or fitted cases enumerated in the second part of the heading such as the specialized “cutlery cases and similar containers” that a chef or cooking student requires to safely carry cutlery, and other culinary items. In other words, the goods in issue are neither specifically enumerated nor are they similar to the trunks, suitcases, vanity cases, attache cases, briefcases, or school satchels provided for in subheading 4202.12, HTSUSA, and therefore are properly described in the basket provision under subheading 4202.92, HTSUSA. Thus, our classification is consistent with the court’s statement in Chevron Chemical Company v. United States, 59 F. Supp. 2d 1361 (CIT 1999) as follows: “Classification of imported merchandise in a basket provision, however, is appropriate only when there is no tariff category that covers the merchandise more specifically” (citing E.M. Chemicals v. United States, 20 C.I.T. 382, 385, 923 F. Supp. 202, 206 (1996)).

Classification of the subject merchandise under heading 4202, HTSUSA, as “similar containers” to “cutlery cases” is supported by an earlier HQ ruling, 084425, dated June 20, 1989. This ruling held that three roll cases and one bag style chef's case for storing and carrying a chef's personal cutlery and tools, were classifiable as "cutlery cases and similar containers", under subheading 4202.92.9020, HTSUSA.

The Importer asserts that HQ 084425 is not controlling because the issue of whether the cases were occupational luggage was not discussed and no questions of design were discussed. It was further asserted by the Importer that there is no indication that the articles were used to carry anything other than cutlery. However, it is important to note that this ruling serves as precedent for the merchandise now in issue because the use of these “knife roll” cases is similar to the subject cases and was considered in classifying all four cases as “cutlery cases and similar containers” under subheading 4202.92.9020, HTSUSA. This is evidenced by correspondence from the Importer which states: “The knife rolls are primar[e]ly (sic) used by cooks and chef’s to store their personal cutlery and tools after the finish of their shift and then placed in a locker at work.”, and “A Knife Roll’s primary function is to store the personal knives of a chef or cook, after finishing their work shift, in their assigned locker at place of work, due to theft of their expensive knives and tools by other personnel.”

Similar to the merchandise now in issue, the cases in HQ 084425 were designed to store expensive knives as well as other culinary tools. Thus, Customs has already considered the fact that certain cases are used to store knives along with a variety of culinary tools and has finally determined that such cases are properly classifiable as “similar containers” to the “cutlery cases” of heading 4202, HTSUSA.

HOLDING:

Based on the foregoing, the subject merchandise, identified as three textile cases: “Pocket Knife Case (Model 30217 and Model 30110) and “Pocket Knife Roll”, is correctly classified in subheading 4202.92.9036,HTSUSA, 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, 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: With outer surface of sheeting of plastic or of textile materials: Other: Other, With outer surface of textile materials: Other: Other.” The general column one duty rate is 18.3 percent ad valorem. The textile category is 870.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home page on the Word Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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