CLA-2 CO:R:C:G 085845 SLR
Joel K. Simon, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048
RE: Reconsideration of HRL 083902 of May 2, 1989
Wrist Sport Stash
Dear Mr. Simon:
This ruling is in response to your letter of October 12,
1989, on behalf of your client, Russ Berrie & Company, requesting
the reconsideration of Headquarters Ruling Letter (HRL) 083902.
In that ruling, our office classified a wrist sport stash as an
article of a kind normally carried in the pocket or handbag in
subheading 4202.32.9550, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). A sample of the wrist sport stash was
provided for our examination.
FACTS:
The wrist sport stash is a pouch constructed of man-made
fibers which measures approximately 2-1/2 inches by 4-1/2 inches
with a zippered closure. Sewn at each side is a 2-1/2 inch
Velcro-type strip fastener. The pouch is designed to be worn on
the wrist while jogging or performing other sports activities to
hold small items such as keys, money, etc. It is used by people
such as joggers, aerobic dancers, and bicyclists, whose apparel
is constructed without pockets.
On February 17, 1988, our New York office, in New York
Ruling Letter (NYRL) 827774, classified the wrist sport stash as
an other made-up article of textile in subheading 6307.90.9000,
HTSUSA. NYRL 836251 of February 23, 1989, however, classified
similar merchandise (a jogger's wrist wallet) as an article of a
kind normally carried in the pocket or in a handbag in subheading
4202.32.9550. In a memorandum dated March 2, 1989, New York
requested the reconsideration of NYRL 827774. Headquarters, in
HRL 083902 issued May 2, 1989, determined that the wrist sport
stash of NYRL 827774 was more properly classifiable as an
article of a kind normally carried in the pocket or in a handbag.
Consequently, pursuant to section 177.9(d) of the Customs
Regulations, NYRL 827774 was revoked.
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In your letter, you maintain that the subject sport stash
should be classified in subheading 6307.90.9050, HTSUSA, as an
other made-up article of textile. Moreover, you claim that New
York's request for the reconsideration of NYRL 827774 was made in
violation of sections 177.9(b) and 177.11 of the Customs
Regulations in that neither you nor your client were informed by
that office of the reconsideration of NYRL 827774. You maintain
that "notice" within the context of section 177.11(b)(1)(i)
involves not only written notice, but also access to Customs
internal memoranda, and that the failure to notify interested
parties of a pending reconsideration renders a Headquarters
decision on the matter a nullity.
You request a copy of the internal memorandum of March 2,
1989, the revocation of HRL 083902, and the reaffirmation of
NYRL 827774.
ISSUES:
I. Did New York violate sections 177.9(b) and 177.11 of the
Customs Regulations by failing to notify either the law firm of
Serko & Simon or their client, Russ Berrie & Company, of its
March 2, 1989 reconsideration request?
II. Is the wrist sport stash classifiable as an article of a
kind normally carried in the pocket or in the handbag in
subheading 4202.32.9550, HTSUSA, or as an other made-up article
of textile in subheading 6307.90.9050, HTSUSA?
LAW AND ANALYSIS:
ISSUE I
Section 177.9(b)(1) of the Customs Regulations provides, in
pertinent part, that:
* * *
If, in the opinion of any Customs Service
field office by whom the transaction is under
consideration or review, the ruling letter
should be modified or revoked, the finding and
recommendation of that office will be forwarded
to the Headquarters Office for consideration, as
provided in [section] 177.11(b)(1)(i), prior to
any final disposition with respect to the
transaction by that office. Otherwise, if the
transaction described in the ruling letter and
the actual transaction are the same, and any and
all conditions set forth in the ruling letter have
been satisfied, the ruling will be applied to the
transaction.
-3-
The pertinent part of section 177.11(b)(1)(i) indicates
that:
* * *
[When a ruling letter has been issued]...and the
Customs Service field office having jurisdiction
over that transaction feels that the ruling should
be modified or revoked, the field office will
forward to the Headquarters Office, pursuant to
[section] 177.9(b)(1), a request that the ruling
be reconsidered. The field office will notify the
importer or other person to whom the ruling letter
was issued, in writing, that it has requested the
Headquarters Office to reconsider the ruling.
Under section 177.11(b)(1)(i), a Customs field office need
only give notice of those reconsideration requests which arise
from transactions over which it has jurisdiction (i.e. current
import transactions). Ruling requests pending before the Office
of the Assistant Area Director, Commercial Operations Division,
New York Seaport (i.e. the office to which the National Import
Specialist (NIS) are assigned) or ruling requests pending before
the Office of Regulations and Rulings, Customs Headquarters, are
not matters pending before an office which has jurisdiction over
an import transaction. In this instance, the NIS staff
identified two inconsistent classification determinations
(NYRLs 827774 and 836251) issued by their office. Since under
current instructions the New York office cannot modify or revoke
its rulings, New York requested that our office settle the issue.
In light of the foregoing, New York did not violate the notice
requirement of sections 177.9(b)(1) and 177.11(b)(1)(i) of the
Customs Regulations since it is not subject to those
requirements.
As to the release of the reconsideration request, section
177.11(b)(1)(i) of the Customs Regulations neither expressly nor
impliedly grants public access to intra-agency memoranda.
Moreover, Exemption 5 of the Freedom of Information Act
(5 USC 552(b)(5)) exempts from public disclosure predecisional
intra-agency memoranda which reflects the deliberative thought
process. The request up until a final decision is issued by this
office is predecisional and subsequent to that final decision is
exempt to the extent it does not support the final decision. In
any event, a request for release should have been directed to the
Regional Commissioner of Customs, New York Region, under the
provisions of Part 103, Customs Regulations.
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ISSUE II
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relevant section
or chapter notes.
Heading 6307 provides for other made-up articles of
textile. The Explanatory Notes, which represent the official
interpretation of the tariff at the international level, offer
guidance in understanding the scope of the HTSUSA headings. The
Explanatory Note to Heading 6307 indicates that:
This heading covers made up articles of
any textile material which are not included
more specifically in other headings of
Section XI or elsewhere in the Nomenclature.
Heading 4202 provides for, among other articles, traveling
bags, handbags, wallets, purses, and similar containers, of
leather, of plastic sheeting, or of textile materials. We
believe that this heading more specifically provides for the
wrist sport stash. The subject article qualifies as a "similar
container" in that it functions much like a key-case, wallet, or
coin purse; it holds and transports small articles such as keys,
coins, and dollar bills.
Subheadings 4202.31 through 4202.39, HTSUSA, provide for
articles of a kind normally carried in the pocket or in the
handbag. This subheading is reminiscent of the provision for
flat goods in Schedule 7, Part 1, Subpart D, of the Tariff
Schedules of the United States. Therein, flat goods were defined
as "small flatwares designed to be carried on the person." The
phrase "on the person" was later interpreted as meaning in the
pocket or in the handbag. HRL 072002 of February 15, 1983.
It is significant that the successor tariff, HTSUSA, does
not contain the word "designed." The HTSUSA provision merely
requires that an item be "of a kind normally carried in the
pocket or in the handbag." Such use of the word "normally" does
not exclude those items which usually are carried in the pocket
or handbag but are adapted to be worn on the person. Past HTSUSA
Customs decisions support this position.
On March 20, 1989, this office, in HRL 082265, classified a
ski wallet with a neck strap as an article of a kind normally
carried in the pocket or handbag. In doing so, we noted that:
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The ski wallet at issue is not meant to be
carried in the pocket or handbag, it is
intended to be worn around the neck while
skiing. It is, however, an article of a
kind that would normally be carried in the
pocket or purse. When dressed for skiing,
pockets are often inaccessible or, if
accessible, a skier does not want bulky
items, such as keys, in them in case he
should fall. The merchandise at issue is
a wallet that is worn hung around the neck
under the ski suit for the convenience
of the skiier.
Similarly, this office in HRL 083644 of April 23, 1989,
classified a travel pouch with a lanyard for wear around the neck
as an article of a kind normally carried in the pocket or
handbag. We stated that the travel pouch was:
[D]esigned to hold a passport, money, and
other items that are ordinarily carried
in the pocket or handbag, and it is small
enough that it could be carried in the
pocket or handbag. The pouch is worn around
the neck under the traveler's clothes in
order to provide security for the items
carried.
The subject wrist sport stash holds items (coins and keys)
that are ordinarily carried in the pocket or handbag. Moreover,
it is small enough that it could be carried in the pocket or
handbag. Consequently, the sport stash is classifiable as an
article of a kind normally carried in the pocket or in the
handbag in subheading 4202.32, HTSUSA.
This office acknowledges that HRL 084868 of September 13,
1989, wherein a child's pencil case worn on the body via a waist
strap was classified in subheading 4202.92.4500, HTSUSA,
dismissed the notion of a subheading 4202.32, HTSUSA,
classification. That language constitutes dicta in the context
of that ruling. Intent as to where an item is to be worn is of
no consequence when considering a subheading 4202.31-39, HTSUSA,
classification. To the extent that the language in the analysis
of HRL 084868 is inconsistent with the foregoing it is revoked.
HOLDING:
The Assistant Area Director, Commercial Operations Division,
New York Seaport, did not violate sections 177.9(b)(1) and
177.11(b)(1)(i) of the Customs Regulations. HRL 083902 will not
be revoked on procedural grounds.
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The wrist sport stash is classifiable in subheading
4202.32.9550, HTSUSA, which provides for articles of a kind
normally carried in the pocket or in the handbag, with outer
surface of textile materials, other, other, of man-made fibers,
textile category 670, dutiable at 20 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 renegotiations and
changes, to obtain the most current information available, we
suggest that you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service, which is available for
inspection at your 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, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
HRL 083902 of May 2, 1989 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division