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HQ 088939

October 29, 1991

CLA-2 CO:R:C:T 088939 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9040

District Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: Decision on Application for Further Review of Protest No. 3801-0-002801 on the classification of Pizza Delivery Pouches

Dear Mr. Roster:

This is a decision on application for further review of a protest timely filed on behalf of John V. Carr & Sons, on August 22, 1990, against your decision on the classification of vinyl covered pizza pouches.

FACTS:

According to the description provided on the manufacturer's invoice, the merchandise at issue is Hann Pizza Bag Item No. 190225, which is a carrying bag with an outer surface of vinyl measuring .8 mm in thickness. The bag itself measures 18 inches square, and it has matching woven trim and straps. A nylon lining covers a 13 mm layer of foam padding. The container is intended to provide storage, protection and portability. A clear plastic pocket is attached to the top flap, which is secured by a hook and loop closure. Gold-toned eyelets are inserted, presumably to provide for the escape of moisture. The protestant states that these containers are used to maintain the warmth and freshness of pizza delivered to retail customers.

This item was classified and liquidated under HTS subheading 4202.92.9040, which provides for other containers, other than those described as "travel, sports and similar bags." In a signed Customs Form 19, the protestant, John V. Carr & Son, contests this classification and asserts classification under heading 3924 as household articles of plastic. In the alternative, it contends that the goods should be classified as other articles of plastics under heading 3926, HTSUSA.

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ISSUE:

1) Is a plastic coated textile container, with a nylon lining and a layer of foam filling, considered a container of heading 4202, a household article of plastic under heading 3924, or an article of plastic under heading 3926, 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 many be applied, taken in order.

The present merchandise is prima facie classifiable in heading 42, 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

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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.

Therefore, the PVC material which measures .8 mm in thickness, and covers the 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.

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 cigarette cases and tobacco pouches listed in the terms of this heading. Such containers are designed to encase and preserve perishable goods for human use or consumption such as tobacco, or pizza, as the case may be. The present article, like the other enumerated containers, is specially designed in size, shape and material, for the carrying of the intended goods. Therefore, classification under heading 4202 is appropriate for this merchandise.

The protestant argues, however, that the containers at issue are not in pari materia with "luggage" of heading 4202 since those containers are generally intended for the carrying of personal items, and are not specially designed to provide insulation. Protestant's assertions imply that containers of heading 4202 are primarily classified on the basis of their ability to carry goods, in its words, on the basis of "portability," and that, where a container is also capable of insulation, the latter characteristic must prevail over "portability" for the purposes of classification. In this vein, carrying cases which provide insulation should not be classified under heading 4202 despite their design for the carrying of goods. Protestant does not show that heading 3924 or heading 3926 provide for goods which provide insulation. The items of Heading 4202, however, have in common their ability to hold and carry various goods, including several which are suited to the carrying of perishable goods. Therefore, we find that the

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function of insulating and portability are co-equal considerations and need not be distinguished in the classification of heading 4202 containers.

Nonetheless, a discussion of the nature of the container at issue is relevant and, a 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. The similarity between a pizza pouch and the articles of heading 4202 is therefore evident, and we conclude that classification of this merchandise under heading 4202 is correct.

Heading 3924, HTSUSA, which provides for household articles of plastic, does not encompass pizza pouches. The EN list many examples of "household articles," including items such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, luncheon boxes, as well as curtains, drapes, table covers and fitted furniture dustcovers (slipcovers). The protestant did not offer any argument or evidence to indicate that a pizza pouch is similar to a water bottle or luncheon box of this heading. Nonetheless, since the pouches at issue are used to transport pizzas from the place of business to the address of the purchaser, but do not enter or remain in the purchaser's home, these goods may not be considered household articles.

As to the protestant's alternative claim for classification under heading 3926, which provides for other articles of plastics, we again note that protestant did not offer any basis for classifying the subject merchandise in a residual category. Indeed, the EN caution that heading 3926 covers articles of plastic, not elsewhere specified or included. Since we have shown that the present merchandise is appropriately included under heading 4202 of the tariff, heading 3926 is rejected.

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

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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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