CLA-2 CO:R:C:T 089851 KWM
Mr. Richard P. Keating
Assistant District Director
United States Customs Service
4430 East Adamo, Suite 301
Tampa, Florida 33605
RE: Application for Further Review of Protest Number 1801-91-
000014; Textile pouches; Jewelry pouches; Similar
containers.
Dear Mr. Keating:
This protest was filed in response to your classification
of textile flocked pouches in three entries liquidated in
October and November of 1990. The pouches were manufactured
in and shipped from El Salvador for entry through the Port of
Tampa. For the reasons below, we find that the protest should
be allowed for two of the three protested entries.
FACTS:
Merchandise invoiced as "jewelry pouches" were entered in
three separate transactions through the Port of Tampa. The
Customs Form 19 (Protest) filed in reference to these entries
specifies the following details:
Entry No. Entry Date Liquidated
1801 032 01443516 12/22/89 10/20/90
1801 032 01484163 05/10/90 11/30/90
1801 032 01495839 06/07/90 11/30/90
This protest was filed on February 20, 1991, more than 90 days
after the 10/20/90 liquidation and less than 90 days following
the 11/30/90 liquidation. The protest was therefore timely
filed for entries numbered 1801-32-01484163 and 1801-032-
01495839 only.
The merchandise consists of pouches made of a woven
fabric which has been flocked with textile material. Two
samples were available for our examination, one measuring
approximately 2 inches by two inches, the other approximately
four inches by five inches. The pouches are closed on three
sides, and open on the fourth. Around the open side is a
drawstring which, when pulled tight, closes the opening.
Inside the pouch is a layer of the flocked woven fabric, which
serves to divide the pouch in half.
At the time of entry, the pouches were classified by the
importer in heading 6305, HTSUSA. The Port of Tampa
reclassified the goods in heading 4202, HTSUSA, as similar
containers. Counsel for the importer, in protesting the
classification change, claims that the proper classification
should be under heading 6307, HTSUSA, as other made up textile
articles. Due to an apparent inconsistency among the
classification decisions issued by Customs, this application
for further review of the Port's protest decision has been
forwarded to this office, in accordance with 19 CFR 174.24.
ISSUE:
Is the jewelry pouch classified in heading 4202, HTSUSA?
If not, where is the jewelry pouch classified?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) is made in accordance
with the General Rules of Interpretation (GRI's). The
systematic detail of the harmonized system is such that
virtually all goods are classified by application of GRI 1,
that is, according to the terms of the headings of the tariff
schedule and any relevant Section or Chapter Notes.
Heading 4202, HTSUSA, provides for a number of distinct
but related items. To be classified here, the merchandise
must fall within the scope of the heading. Jewelry pouches
such as these are not specifically described by a heading
term, although they may be included in the provision for
"similar articles" to exemplars of the heading if they are
ejusdem generis to the goods specifically named. We find that
they are not.
Heading 4202 is not considered a "use" provision, nor is
it strictly an eo nomine provision. While the phrase "similar
containers" may reasonably encompass many items, in
classifying goods as "similar" we look to certain factors
which narrow the scope of the provision; we do not classify in
heading 4202, HTSUSA, articles which may have the potential to
contain or hold clothing and/or personal effects. For
example, in Headquarters Ruling Letter (HRL) 086852, we found
that the "textile drawstring pouches" were not "specially
shaped or fitted" similar to other articles of heading 4202,
HTSUSA. Those factors (or absence thereof) indicate an
exclusion from classification in heading 4202, HTSUSA. Simple
suitability for long term use is not, in and of itself,
sufficient. That the pouches are of a type "normally carried
in the pocket or handbag" is not an important factor at the
four-digit heading level. And, although the bags could be
used for travel, their character is not that of an article
designed to transport personal belongings while traveling.
While varying in size, bags of this construction are commonly
provided as a type of premium packaging at the point of
purchase for various items such as jewelry, liquor perfume,
etc. The goods' impermanent nature is evident in their
construction and most will, in our opinion, be disposed of or
put to other uses. We find that the terms of heading 4202,
HTSUSA, do not include this merchandise.
Since we find no other heading which, by GRI 1, includes
this merchandise, we consider the pouches to be a composite
good. The primary constituent materials in this case are the
man-made textile flocking and the PVC material to which the
flocking is adhered. GRI 3 provides that classification of
composite merchandise shall be made according to that material
which provides the article with its essential character. In
this case, we consider the man-made textile flock to provide
the essential character. Although the PVC may form the shape
of the bag, it is the man-made flocking which is visible to
the user; it is the flocking which provides the bag with a
soft surface, an attractive feel, and consumer appeal.
Therefore, the jewelry pouches are classified in subheading
6307.90.9490, HTSUSA.
HOLDING:
The protest should therefore be allowed with regard to
the classification of the subject pouches in subheading
6307.90.9490, HTSUSA, as other made up textile articles. The
applicable rate of duty associated with that classification is
7 percent ad valorem. However, as products of El Salvador,
which is a country designated as a beneficiary developing
country for purposes of the generalized system of preferences,
the instant merchandise is eligible for entry free of duty.
A copy of this decision should be attached to the Notice
of Action (CF 12) to be sent to the protestant.
Sincerely,
John A. Durant, Director
Commercial Rulings Division