| Title: | SGI V. UNITED STATES |
|---|---|
| Date: | 1997-12-23 |
| To: | abi |
| Links: | previous, next |
TO : ALL ABI BROKERS.
FROM : DON LUTHER
SUBJECT : SGI V. UNITED STATES
DATE : 12/19/97
NOVEMBER 7, 1997
CATEGORY: CLA CLA-1-FO:TC:CC DL
TO : ALL PORT AND AREA DIRECTORS OF CUSTOMS
NATIONAL AND FIELD NATIONAL IMPORT SPECIALISTS
ENTRY SPECIALISTS AND INTERESTED PARTIES SUCH AS
BROKERS AND IMPORTERS
FROM : DIRECTOR, TRADE COMPLIANCE
SUBJECT: SGI V. UNITED STATES, HTS 3924, HTS 4202, HTS 6307,
INSULATED CARRYING BAGS
BACKGROUND:
THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT (CAFC) HAS ISSUED A
DECISION ADVERSE TO THE GOVERNMENT IN SGI, INCORPORATED V. UNITED
STATES, 122 F.3D 1468, SLIP OP. 96-1272, DECIDED SEPTEMBER 5,
1997.
REVERSING AN EARLIER DECISION BY THE COURT OF INTERNATIONAL
TRADE, THE CAFC REJECTED THE NOTION THAT THE SOFT-SIDED,
INSULATED COOLERS WITH HANDLES OR STRAPS WERE EJUSDEM GENERIS
WITH THE EXEMPLAR CONTAINERS OF HEADING 4202, HTSUS. IN OTHER
WORDS, THE COURT HELD THAT THE LANGUAGE OF HTS 4202 DOES NOT
PROVIDE FOR CONTAINERS THAT ORGANIZE, STORE, PROTECT OR CARRY
FOOD OR BEVERAGES.
THE CAFC HELD THAT THE APPROPRIATE CLASSIFICATION FOR SGI'S "
CHILL" COOLERS WAS SUBHEADING 3924.10.50, HTSUSA, THE PROVISION
FOR "TABLEWARE, KITCHENWARE, OTHER HOUSEHOLD ARTICLES...OF
PLASTICS: TABLEWARE AND KITCHENWARE: OTHER." THE COURT'S
REASONING IN THIS DECISION WAS THAT THE COOLERS' PURPOSE IS TO
CONTAIN FOOD AND BEVERAGES, WHICH IN ITS VIEW IS CONSISTENT WITH
THE EXEMPLARS FOR 3924, WHICH INCLUDE "VARIOUS HOUSEHOLD
CONTAINERS FOR FOODSTUFFS SUCH AS SALT, PEPPER, MUSTARD, AND
KETCHUP DISPENSERS AND SERVING PIECES FOR FOOD."
-2-
THE U.S. CUSTOMS SERVICE DOES NOT AGREE WITH THIS DECISION, BUT
HAS NOT AND WILL NOT FILE FOR REHEARING OR REVIEW. THE OFFICE OF
REGULATIONS AND RULINGS HAS CONCLUDED THAT THE PRINCIPLES OF THE
SGI DECISION SHOULD BE APPLIED ONLY TO MERCHANDISE HAVING THE
FOLLOWING CHARACTERISTICS:
". . .^PORTABLE INSULATED COOLERS AND SIMILAR
INSULATED CONTAINERS, WITH OUTER SURFACE OF
SHEETING OF PLASTIC, WHETHER HARD OR SOFT-
SIDED, THAT ARE DESIGNED TO CONTAIN ONLY FOOD
AND/OR BEVERAGES, AND TO MAINTAIN THESE
CONTENTS AT EITHER A HOT OR A COLD TEMPERATURE
OVER TIME."
THE PRINCIPLES OF THE SGI DECISION SHOULD NOT BE APPLIED TO
ANY OF THE FOLLOWING, WHICH REMAIN PROPERLY CLASSIFIED AT HTS
4202:
* RUCKSACKS, NON-DISPOSABLE SHOPPING BAGS, BACKPACKS,
HOLSTERS, POUCHES, SHEATHS, AND SIMILAR CONTAINERS,
WHETHER OR NOT INSULATED AND DESIGNED TO STORE AND
MAINTAIN ONLY FOOD AND/OR BEVERAGES AT A CERTAIN
TEMPERATURE
* INSULATED PRODUCTS DESIGNED TO CONTAIN ANY ITEMS OR
ARTICLES IN ADDITION TO FOOD AND/OR BEVERAGES, E.G.
PLATES, CUPS, A FLASHLIGHT, A COMPASS, ETC.
* LUNCH BOXES, IF NOT INSULATED, EVEN IF DESIGNED TO
STORE AND MAINTAIN ONLY FOOD AND/OR BEVERAGES.
* BOTTLE CASES, INSULATED BOTTLE BAGS, AND SIMILAR
CONTAINERS, IF DESIGNED TO CONTAIN ONLY ONE BOTTLE
OR SIMILAR SINGLE UNIT OF A BEVERAGE, REGARDLESS OF
THE UNIT'S CAPACITY. (A BOTTLE CASE IS AN EXEMPLAR
CONTAINER OF HEADING 4202 AND IS NOT DESIGNED TO
CONTAIN MULTIPLE BEVERAGES OR FOOD.)
* PIZZA CARRIERS. THESE CASES ARE DESIGNED FOR
COMMERCIAL USE IN THE DELIVERY OF FOODSTUFFS TO
HOUSEHOLDS.
* ANY CASES, POUCHES, OR OTHER CONTAINERS DEDICATED
TO CIGARETTES OR TOBACCO, AS TOBACCO IS NOT A FOOD
OR A BEVERAGE.
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COOLERS LIKE THE "CHILL" COOLER IN THIS CASE, BUT WITH OUTER
SURFACE OF TEXTILE MATERIALS, ARE LIKEWISE NOT ADDRESSED BY
THE SGI CASE, AND WILL BE THE SUBJECT OF FUTURE INSTRUCTIONS.
ACTION:
IN ACCORDANCE WITH THE COURT DECISION, FIELD OFFICES ARE TO
LIQUIDATE/RELIQUIDATE ENTRIES COVERING INSULATING COOLERS,
WITH OUTER SURFACE OF PLASTICS, DESIGNED FOR HOLDING ONLY
FOOD OR BEVERAGE, DESIGNED TO MAINTAIN TEMPERATURE OVER A
PERIOD OF TIME, IN SUBHEADING 3924.10.50, HTSUSA. ENTRIES
COVERING OTHER MERCHANDISE SHOULD BE HANDLED WITHOUT REGARD
TO SGI V. UNITED STATES, AS EXPLAINED ABOVE.
ENTRY DESCRIPTIONS AND INVOICES SUBMITTED THEREWITH MAY NOT
BE SUFFICIENTLY DETAILED TO PERMIT IMPORT SPECIALISTS TO
ASCERTAIN WHETHER THE MERCHANDISE IS OF THE TYPE COVERED BY
THE COURT'S DECISION. IN SUCH CASE, WE RECOMMEND THAT YOU
REQUEST IMPORTERS TO SUBMIT APPROPRIATE DOCUMENTATION TO
DETERMINE WHETHER THEIR GOODS ARE THE SAME AS THOSE COVERED
BY THE COURT'S OPINION.
QUESTIONS REGARDING THIS MESSAGE SHOULD BE DIRECTED TO DON
LUTHER AT (202) 927-0915 OR VIA CC:MAIL.
ANNE K. LOMBARDI FOR
PHILIP METZGER