CLA-2 RR:TC:TE 960218 jb
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901
RE: Request for reconsideration of NY A88906; classification of
a PVC case for glasses; heading 4202, HTSUS; substantial
construction; repeated use; heading 4202, HTSUS
Dear Messrs. Siegel, Mandell & Davidson:
This is in response to your letter, dated January 31, 1997,
on behalf of your client, Marchon Eyewear, Inc., regarding your
request for reconsideration of New York Ruling (NY) A88906, dated
November 26, 1996, addressing the classification of a PVC case
for glasses under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). A sample was submitted to this office
for examination.
FACTS:
The subject merchandise, measuring approximately 6 inches by
2.25 inches by 2.25 inches, is a rectangular case made of clear
polyvinyl chloride plastic sheeting (PVC) material and features a
tongue and groove slider closure along the top side. It is
assumed that the case will be imported empty and subsequent to
importation the case will serve as a carrying case for eyewear.
The sample features the logo "CK Eyewear" printed on the face of
the case.
In NY A88906, the eyeglass case was classified in subheading
4202.92.4500, HTSUSA, which provides for, among other things,
other containers, with outer surface of plastic or of textile
materials, travel, sport or similar bags . You disagree with
that classification and instead, propose classification in
subheading 3923.10.0000, HTSUSA, which provides for, among other
things, articles for the conveyance and packing of goods, of
plastics, boxes, cases, crates and similar articles. In the
alternative, you propose subheading 3923.29.0000, HTSUSA, which
provides for, among other things, sacks and bags. In support of
this classification you make reference to:
1. NY 802585, dated October 26, 1994; HQ 884585, dated
April 16, 1993; HQ 892740, dated December 10, 1993; NY
A84550, dated June 14, 1996 and HQ 087437, dated
September 1, 1990. These rulings are cited as evidence
that bags and cases of significantly greater durability
than the plastic packaging at issue are not designed
for prolonged use and therefore not classifiable in
heading 4202, HTSUS;
2. Headquarters Decision (HQ) 953077, dated December 28,
1995; HQ 082831, dated February 26, 1990 and HQ 082998,
dated October 23, 1989. These rulings are cited as
evidence that articles which are not designed for
prolonged use are not properly classified in heading
4202, HTSUS;
3. HQ 954403, dated November 16, 1993. This ruling is
cited as evidence that articles which are not specially
fitted or shaped to contain their contents and which
may also contain other small objects are precluded from
classification in heading 4202, HTSUS.
ISSUE:
What is the proper classification for the subject
merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the rules of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI.
Heading 3923, HTSUS, provides for, among other things,
articles for the conveyance or packing of goods, of plastics.
You assert in your submission that the proper classification for
the subject merchandise is heading 3923, HTSUS, because it is
principally used as an article for the conveyance and packing of
goods. You cite a number of rulings in support of your position:
NY 802585 and HQ 884585, classifying molded plastic watch boxes,
NY 892740 and NY A84550, classifying compact disc and cassette
cases of clear molded plastic, and HQ 087437, classifying a
plastic carrying case containing a tray specially fitted to hold
bobbins of embroidery thread. We have no disagreement with the
fact that all of the "boxes" and "cases" in the rulings you cite
were found to be articles of retail packing. The rationale for
those determinations was premised on the fact that the referenced
merchandise was to be used primarily as temporary packaging for
the merchandise contained therein. Once the purchase was made,
the containers would be discarded. No other uses, particularly
of a protective nature, were attributable to that merchandise.
Heading 4202, HTSUS, 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, 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. In Totes,
Inc., v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871
(1994), the Court of International Trade concluded that the
"essential characteristics and purpose of Heading 4202 exemplars
are...to organize, store, protect and carry various items." The
Court also ruled that by virtue of ejusdem generis the residual
provision for "similar containers" in heading 4202, HTSUS, is to
be broadly construed.
You refer to a number of rulings which classify a variety of
shopping bags (HQ 953077, HQ 082831, HQ 082998) which you believe
are of similar or greater construction than the subject
merchandise and state that they are comparable to the subject
eyewear case because they are not designed for prolonged use.
You state that "shopping bags of plastic sheeting which, like the
instant item, were capable of reuse but were intended for a
single use (to carry purchases from the point of sale to the
consumer's home) were excluded from classification within heading
4202, HTSUS". Additionally, you cite HQ 954403, wherein Customs
determined that a drawstring bag designed to hold sunglasses was
not properly classified within heading 4202, HTSUS, as it was not
specially shaped or fitted to hold sunglasses, but could hold
various articles of similar size. Although we take note of the
similarities in the construction of all of the merchandise cited,
we bring the notable distinctions to your attention. The
cornerstone for a heading 4202, HTSUS, classification
determination is the fact that the items classified therein serve
the essential purpose of organizing, storing, protecting and
carrying various items. All of the merchandise in the rulings
you cite were determined not to provide all of those fundamental
elements; the construction of the bags and the drawstring pouch,
whether or not substantial, were deemed not to be protective in
nature.
The subject merchandise is designed to suit the needs of the
glasses it will carry . The
dimensions of the bag are more than adequate to snugly
accommodate eyeglasses regardless of the absence of internal
fittings or compartments. The PVC construction of the case
provides a sturdy and protective case to transport the glasses,
thus ensuring not only the repetitive use of the subject article,
but that it will also be used as a decorative and "protective
packing" for the glasses it will transport. The fact that the
subjective merchandise might also be used to carry and protect
other small items does not detract from the obvious purpose of
the subject eyewear case, that is, to carry and protect, for a
prolonged or extended period of time, the initial eyeglass
purchase. Customs classified merchandise similar to the
submitted sample in HQ 957076, dated December 28, 1995. Therein a
toiletry/cosmetic bag of clear 7.5 mil thick PVC plastic
sheeting, measuring 3-1/2 inches by 4-1/2 inches by 3/4 inches
and a larger bag measuring approximately 6-1/2 inches by 4-1/2
inches by 1 inch, featuring a tongue and groove slider closure,
were classified in heading 4202, HTSUS. Quoting another ruling,
HQ 954715, dated February 17, 1994, it was stated:
the bags have been designed for repetitive use. We note
that these containers possess tongue and groove closures
with metal and plastic slides that will withstand many uses.
The plastic material is of a gauge sufficient to resist rips
and tears.... The bags are similar to pencil cases or
pouches of plastic which we have classified in heading 4202
when designed for travel.
* * * *
The same holds true for the subject merchandise. The
subject eyeglass case is the type of article specifically
enumerated in heading 4202, HTSUS. As such, the protective,
storage and organizational properties evidenced by this
merchandise clearly make the case the type of article provided
for under heading 4202, HTSUS.
HOLDING:
The subject merchandise is properly classified in subheading
4202.92.4500, HTSUSA, which 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, 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: other: with outer surface of sheeting of plastic or
of textile materials: travel, sports and similar bags: other.
The applicable rate of duty is 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 negotiations and
changes, we suggest that your client check, close to the time of
shipment, the Status Report On Current Import Quotas (Restraint
Levels), an issuance of the U.S. Customs Service, which is
updated weekly and is available at the 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, your client should contact the
local Customs office prior to importing the merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division