CLA-2 RR:TC:TE 959966 RH
Ms. Mona Webster
Import Customs Specialist
Target Stores
P.O. Box 1392
Minneapolis, MN 55440-1392
RE: Classification of a pencil binder pouch; heading 6307; other
made up articles; heading
4202; heading 3923; Totes v. United States, 69 F. 3d 495
(1995); sacks and bags of other
plastics; ejusdem generis; pen-cases and "similar
containers"
Dear Ms. Webster:
This is in reply to your letter of October 14, 1996, seeking a
classification ruling on a pencil binder pouch from China. You
submitted a sample to aid us in our determination.
FACTS:
The merchandise under consideration is a binder pouch constructed
of a plastic sheeting backed with woven fabric. It measures 4
inches by 10 inches and has a zipper front. The pouch has an
elastic strap in the back designed to be slipped over the cover
of a standard ring binder and is used to hold supplies (i.e.,
pencils, etc.) and/or personal items. It is referenced as
article number 819-609.
In your letter you state that "Binding Ruling NY 862819 dated May
10, 1991 classified a similar item under 6307.90.9490 . . .
[b]ased on this ruling we feel that the correct classification is
3923.29.0000 @ 3%." Based on your statement, it is not clear
under which tariff provision you seek classification for the
binder pouches. However, we will address all the relevant
provisions, including the two you mention.
ISSUE:
Is the pencil binder pouch classifiable under heading 6307,
HTSUSA, as other made up articles, under heading 3923, HTSUSA, as
sacks and bags of other plastics, or under heading 4202, HTSUSA,
as a "similar container?"
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LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. You refer to
subheading 3923.29 which encompasses sacks and bags of other
plastics and to subheading 6307.90, which includes other made up
textile articles.
Heading 4202 provides for:
Trunks, suitcases, vanity cases, attache cases,
briefcases, school satchels, spectacle cases, binocular
cases, camera cases, musical instrument cases, gun
cases, holsters and similar containers; traveling 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 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.
The Explanatory Notes (EN) to the Harmonized Commodity
Description and Coding System constitute the official
interpretation of the nomenclature at the international level.
While not legally binding, they do represent the considered views
of classification experts of the Harmonized System Committee. It
has, therefore, been the practice of the Customs Service to
follow, whenever possible, the terms of the EN when interpreting
the HTSUSA.
The EN to heading 4202 state that the expression "similar
containers" in the second part of the heading (after the
semicolon) includes, among other things, note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, etc.
In the case of Totes v. United States, 69 F. 3d 495 (1995), the
appellant challenged the classification of a trunk organizer as a
"similar container" under heading 4202, contending that it should
have been classified as a motor vehicle accessory in heading
8708, HTSUSA. The court held that the trunk organizer case
shared the essential characteristics of the containers listed in
subheading 4202.92, i.e., to organize, store, protect and carry
various items. The court stated:
Under the rule of ejusdem generis, which means "of the
same kind," where an enumeration of specific things is
followed by a general word or phrase, the general word
or phrase is held to refer to things of the same kind
as those specified. As applicable to classification
cases, ejusdem generis requires that the imported
merchandise possess the essential characteristics or
purposes that unite the articles enumerated eo nomine
[by name] in order to be classified under the general
terms.
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Moreover, the court reasoned that the trunk organizer is similar
to tool bags listed in the EN to 4202 as an example of
merchandise classifiable under that heading. Thus, the court
held that the tariff provision for "similar containers" in
heading 4202 more specifically described the merchandise than the
provision for parts and accessories of motor vehicles in heading
8708. The court further stated that:
Containers' which have the one principal function of
containing, even though encompassing a wide variety
thereof, is a more specific term that accessory' which
can include a wide variety of items having many
different functions.
In light of Totes, we find that the binder pencil pouch, like the
pen-cases referred to in the EN, is ejusdem generis or "of the
same kind" of merchandise as exemplified in heading 4202. It
possesses the essential characteristics or purposes of those
articles, i.e., to organize and store merchandise - in this case
pencils. Furthermore, heading 4202 describes the binder pouch
more specifically than heading 6307 (other made up articles) or
3923 (sacks and bags of other plastics).
Finally, Section 152.16(b) of the Customs Regulations (19 CFR
152.16(b)) reads:
The principles of any court decision favorable to the
Government shall be applied to merchandise, though not
identical with the merchandise the subject of the
court's decision, if its classification is affected by
such principles, provided that it has been entered or
withdrawn for consumption after 30 days from the date
of publication of the court's decision in the Customs
Bulletin.
The principles of the Totes decision apply to the classification
of your merchandise and the ruling you cite (NY 862819) is,
therefore, not controlling.
HOLDING:
The binder pencil pouch is classifiable under subheading
4202.92.9025, HTSUSA, which provides for, among other things,
other containers with an outer surface of textile materials or a
sheeting of plastics. It is dutiable at the general column rate
at 19.3 percent ad valorem and falls within textile category 670.
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.
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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 importing the merchandise to determine the
current applicability of any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division