CLA-2 OT:RR:CTF:TCM H026225 GC
Peter Biggs
Thexus Group International
16000 Sherman Way, #104
Los Angeles, California 91406
RE: Tariff classification of a molded plastic cigarette case; revocation of HQ 084525
Dear Mr. Biggs:
In Headquarters Ruling Letter (HQ) 084525, dated August 10, 1989, Customs and Border Protection (CBP) issued to you a binding ruling on the tariff classification of a plastic cigarette case. We have since reviewed HQ 084525 and find it to be in error. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on January 15, 2009, in Volume 43, Number 4, of the CUSTOMS BULLETIN. CBP received no comments in response to the notice.
FACTS:
The merchandise subject to HQ 084525 was a cigarette case made of injection molded plastic. It was designed to hold twenty standard cigarettes and a BIC® lighter.
In HQ 084525, CBP held that the subject cigarette case was classifiable under subheading 3923.10.00, HTSUS (1989), which provided for: “[a]rticles of plastic for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: [b]oxes, cases, crates and similar articles.” The subheading remains unchanged in the 2008 version of the HTSUS.
ISSUE:
Whether the cigarette case made from molded plastic is classified in heading 3923, HTSUS, as a plastic article for the conveyance of goods, heading 3926, HTSUS, as an other plastic article, or heading 4202, HTSUS, as a cigarette case?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:
3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:
3923.10.0000 Boxes, cases, crates and similar articles…
* * *
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other…
2926.90.9980 Other
* * *
4202 Trunks, suitcases, vanity cases, attache case, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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:
Articles of a kind normally carried in the pocket or in the handbag:
4202.32 With outer surface of sheeting of plastic or of textile materials:
With outer surface of sheeting of plastic:
4202.32.2000 Other…
Note 2(m) of chapter 39, HTSUS, states that chapter 39 does not cover: “[s]addlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202.” Accordingly, we must first determine that the subject cigarette case does not fall within the terms of heading 4202, HTSUS, before giving consideration to the headings of chapter 39, HTSUS.
As noted above, cigarette cases are enumerated in the second part of the text of heading 4202, HTSUS, which provides that goods of that heading must be “…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”.
The cigarette case subject to HQ 084525 was not composed of any of the materials listed in the text of the second part of heading 4202, HTSUS, nor was it covered with those materials or with paper. In HQ 084525, we stated correctly that “sheeting of plastics” is distinct from the molded plastic, which comprises the subject merchandise. As cigarette cases are listed in the second part of the heading text, classification in heading 4202, HTSUS, is restricted to cigarette cases composed of the materials listed therein, such as leather, composition leather, sheeting of plastics, textile materials, vulcanized fiber, paperboard, or wholly or mainly covered with such materials or paper.
As a result of our finding in HQ 084525 that the subject cigarette case was not classifiable in heading 4202, HTSUS, we held that it was classifiable in subheading 3923.10.0000, HTSUS.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
The EN to heading 3923, HTSUS (EN 3923), provides, in pertinent part:
This heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include:
(a) Containers such as boxes, cases, crates, sacks and bags (including cones and refuse sacks), casks, cans, carboys, bottles and flasks. (Emphasis added).
As indicated by the heading text and EN 39.23, above, heading 3923, HTSUS, covers articles of plastic for the conveyance of goods. It is CBP’s consistently stated position that the exemplars listed in EN 39.23 are used generally to convey or transport goods over long distances and often in large quantities. See, e.g., HQ 087635, dated October 24, 1990; HQ 951404, dated July 24, 1992; HQ 953841, dated September 27, 1993; and HQ 963493, dated March 23, 2000. Furthermore, heading 3923, HTSUS, provides for cases and containers used for shipping purposes. See HQ 089825, dated April 9, 1993 and HQ 953275, dated April 26, 1993. Accordingly, heading 3923, HTSUS, provides for cases and containers of bulk goods and commercial goods, not personal items. See HQ 954072, dated September 2, 1993; HQ 963493, supra; and HQ 953841, supra.
With respect to personal items, CBP has revoked a series of rulings in which containers used for personal articles were classified under heading 3923, HTSUS. In HQ 960199, dated May 15, 1997, we revoked an earlier ruling, NY 887467, dated July 9, 1993, which classified a plastic molded pencil box under heading 3923, HTSUS, and reclassified the article under heading 3926, HTSUS. Citing to the rulings which state that heading 3923, HTSUS, provides for cases and containers of bulk goods and commercial goods, not personal articles, we found that the pencil boxes transported pens, pencils, erasers, etc. for personal use and were not described by heading 3923, HTSUS. See also HQ 960196, dated May 15, 1997; HQ 960198, dated May 15, 1997; HQ 960152, dated May 15, 1997; and HQ 960153, dated May 15, 1997.
The subject cigarette case is not designed to carry bulk or commercial goods. In fact, it is designed to carry twenty cigarettes and a lighter. Stated differently, the subject merchandise is not used in the conveyance of goods, but is designed to facilitate the purchaser’s personal transportation and storage of cigarettes in the same manner that the pencil box of HQ 960199 facilitated the personal storage and transportation of pencils. Because the subject cigarette case was designed for the purchaser’s personal use with regards to carrying and smoking cigarettes, it is not within the scope of heading 3923, HTSUS. Consequently, it is classifiable under heading 3926, HTSUS, which covers “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914”.
HOLDING:
By application of GRI 1, the subject cigarette case is classifiable under heading 3926.90.9980 HTSUS, which provides for: “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [o]ther… [o]ther.” The column one, general rate of duty is 5.3 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 084525, dated August 10, 1989, is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles Harmon, Director
Commercial and Trade Facilitation Division