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

Division