CLA-2 RR:CR:TE 962551 jb
Area Director
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607
RE: Decision on Application for Further Review of Protest No. 3901-99-100028; micro-fiber draw string bag for sunglasses
Dear Sir:
This is a decision on an application for further review of a protest timely filed by Fitch, King and Caffentzis, on behalf of Quality Accessories, Inc., against your decision regarding the proper classification under the Harmonized Tariff Schedule of the United States (HTSUS) for micro-fiber draw string bags for sunglasses. The entry at issue was liquidated on December 28, 1998.
FACTS:
The merchandise at issue is described by the Protestant as measuring approximately 4 inches by 7 inches, made of a woven man-made fiber, having no formal means of closure other than a drawstring fitted at the top of the bag and used to package retail goods, such as eyeglass cleaners and wiping cloths, in lieu of other wrappings. However, when the National Import Specialist examined the subject merchandise his description noted that the item is a pouch/purse designed/sized for standard spectacles. The pouch is of micro-fiber (man-made textile materials), measuring 4 inches by 7 inches high, with a braided drawstring of matching man-made fiber cord.
It is the Protestant’s opinion that the subject merchandise is properly classified in heading 6307, HTSUS, and not in heading 4202, HTSUS, where Customs reclassified this merchandise.
The Protestant raises two issues. First, the Protestant claims that Customs demand to redeliver was improper because the subject merchandise was classified at the time of entry under heading 6307, HTSUS, and not under heading 4202, HTSUS, and it remained under heading 6307, HTSUS, until the entry was liquidated and the classification was changed to heading 4202, HTSUS. The Protestant claims that Customs classification of this merchandise in heading 4202, HTSUS, was “merely proposed” and that it was not “an accomplished fact.” As such, the fact that the notices of redelivery predated liquidation of the entry, rendered the notices of redelivery null and void.
Secondly, the Protestant claims that the subject merchandise is properly classified in heading 6307, HTSUS, and not in heading 4202, HTSUS.
ISSUE:
1. Whether the subject merchandise is properly classified in heading 6307, HTSUS, as an other made up textile article, or in heading 4202, HTSUS, as a spectacle case or similar container?
2. Whether the demand for redelivery was proper?
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 terms 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.
The competing provisions at issue in this protest are heading 6307, HTSUS, which provides for, among other things, other made up articles, a basket provision for articles not more specifically provided for elsewhere in the tariff, and heading 4202, HTSUS, which provides for, among other things, trunks, suit cases, vanity cases, attache cases, brief cases, school satchels, spectacle cases and similar containers. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) state that subheading 4202.32, HTSUSA, covers articles of a kind normally carried in the pocket or in the handbag and includes spectacle cases, note cases (bill folds), wallets, purses, key cases, cigarette cases, cigar cases, pipe cases and tobacco pouches. Where a pouch is considered specially designed to hold an article, and of adequate construction to be used repeatedly (rather than discarded), it is classifiable under heading 4202, HTSUS. If it is the kind of article to be carried in the pocket or handbag, with an outer surface of textile material, it is classifiable under subheading 4202.32, HTSUS.
In Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995), the Court of International Trade held that the essential characteristics and purposes of the heading 4202 exemplars are to organize, store, protect and carry various items. With respect to the broad reach of the residual provision for “similar containers” in heading 4202 by virtue of the rule of ejusdem generis, the Court found that the rule requires only that the imported merchandise possess the essential character or purpose running through all of the enumerated exemplars.
The Protestant makes reference to a series of Customs rulings issued over the past nine years which he believes support his claim that the subject merchandise is virtually identical to the pouches addressed in those rulings and which were classified in heading 6307, HTSUS. We note that except for one, all of those referenced rulings concerned generic pouches (i.e., jewelry pouches, sachet bags, etc.) which were determined to be of non-substantial construction and not suitable for repeated use. They are distinguishable from the case of the submitted merchandise which consists of a drawstring bag for sunglasses composed of durable fabric construction. However, with respect to the Protestant’s reference to Headquarters Ruling Letter (HQ) 954403, dated November 16, 1993, it is the opinion of this office that the language in the analysis portion of that ruling is, in part, inconsistent with Customs position on merchandise classified in heading 6307, HTSUS. That is, contrary to what is stated in that ruling, the “durability” and substantial nature of such items are determinative factors to the classification of that merchandise. As such,
Customs is in the process of reviewing HQ 954403 with a view of possible modification of the analysis and/or revocation of the holding. We thank you for bringing this ruling to our attention. In light of the substantial number of consistent rulings available to the public on this issue, one aberrant ruling is not controlling or persuasive on the classification of this merchandise.
In the case of pouches or drawstring bags for sunglasses, Customs has been consistent in its determination that such merchandise, when adequately constructed for repeated use is properly classified in heading 4202, HTSUS. 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. Furthermore, the particular fabric composition of the subject merchandise, that is, its micro-fiber construction, has been referred to in past Customs rulings addressing virtually identical merchandise, as an ideal cleaning cloth for the glasses (See, HQ 960135, dated July 11, 1997, and HQ 959524, dated November 4, 1996).
Accordingly, the subject merchandise is properly classified in subheading 4202.32.9550, HTSUSA, which provides for, among other things, articles of a kind normally carried in the pocket or in the handbag: with outer surface of sheeting of plastic or of textile materials: with outer surface of textile materials: other: other; of man-made fibers. The applicable rate of duty is 18.8 percent ad valorem and the quota category is 670.
With respect to the redelivery notices, the Protestant claims that the demand for redelivery was improper because it was made prior to liquidation. Specifically, the Protestant argues that at the time the demand for redelivery was made, classification in heading 4202, HTSUS, was a proposal, and classification in that heading was not an “accomplished fact” until liquidation.
Initially, we note that the notice to redeliver was timely made and made in proper form on Customs Form 4647. 19 CFR §141.113(c), provides that the port director may make a demand for redelivery of any merchandise which he finds is not entitled to admission to the U.S. This demand may be made any time after entry and prior to liquidation becoming final. See 19 CFR §141.113(c) and (g). In addition, the Customs Service is not required in the notice of redelivery to prove the validity of its determination to demand redelivery. See C.S.D. 85-22. Consequently, we find that the Protestant’s claim that the notice to redeliver was improper is without merit.
HOLDING:
The protest should be denied. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division