CLA-2 RR:CR:TE 962710 JFS
Mr. David Ballard
U. S. Customs Service
Area Port Director
198 West Service Road
Champlain, NY 12919
Re: Internal Advice 31/98, Classification and Country of Origin Marking, Spectacle Cases and Spectacle Pouch, 4202.32 and 4202.39, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
Dear Mr. Ballard:
This is in response to your memorandum, dated November 5, 1998, concerning a request for Internal Advice submitted by Fritz Starber, Inc. on behalf of Ronor Innovations Inc., requesting a ruling on the classification and country of origin marking for five styles of eyeglass cases. Samples of the eyeglass cases were submitted to this office. Prior to this ruling the samples and any submissions were considered. A meeting was not requested.
FACTS:
Sample #1: Model ED20-MAIT (Eyeglass Case #1) is a soft-sided spectacle case having an outer surface of 100 percent polyester fabric. The importer’s representative proposes that the proper classification of this style eyeglass case is 4202.32.9550, HTSUSA, as: “An article of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: Other: Other: Of man-made fibers.” The eyeglass case is marked with its country of origin by means of a sewn-in fabric label. The label is sewn to the interior flap and is readily visible when the case is opened. The front side of the label reads “Pearle Vision”. The legend “Made in Canada” is on the reverse side of the label in 6-point type.
Sample #2: Model RAPALA (Eyeglass Case #2) is a drawstring pouch sized and configured for a pair of eyeglasses and is constructed of a knit fabric that is 50 percent polyester and 50 percent cotton fibers. The importer’s representative contends that the proper classification of this style eyeglass case is 4202.32.9550, HTSUSA, as: “An article of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: Other: Other: Of man-made fibers.” The pouch has a fabric label sewn into the exterior seam which reads “Made in Canada” on one side and “Rapala” on the opposite side.
Sample #3: Model ED 105-INJ (Eyeglass Case #3) is a hard molded plastic eyeglass case. The exterior is not covered with a fabric or other material. The interior is lined with a flocked plastic material. The importer’s representative has suggested that the proper classification of this style eyeglass case is 4202.39.1000, HTSUSA, as: “Articles of a kind normally carried in the pocket or in the handbag: Other: Of material . . . wholly or mainly covered with paper: Of plastics.” The country of origin, “Made in China” is ink stamped into the interior on the flocked plastic at the bottom right corner. The country of origin marking is in approximately 3 point type.
Sample #4: Model ED160-LIZ (Eyeglass Case #4) is an eyeglass case of base metal covered on the exterior with an imitation leather material. The imitation leather is composed of a cellular plastic sheeting that is backed with a knit fabric. The interior is lined with a flocked plastic material. The importer’s representative contends that the proper classification of this style eyeglass case is 4202.32.2000, HTSUSA, as: “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 sheeting of plastic: Other.” The country of origin “Made in China” is ink stamped into the inside front lip of the case. The print is approximately 3-point type.
Sample #5: Model ED848-KIDS (Eyeglass Case #5) is a hard molded plastic eyeglass case. A printed cotton fabric insert is affixed to the exterior surface of the top lid. The interior is lined with a flocked plastic material and is printed with a name and address entry to allow the owner to enter his or her name and address. The proposed classification of this style eyeglass case is 4202.39.1000, HTSUSA, as: “Articles of a kind normally carried in the pocket or in the handbag: Other: Of material . . . wholly or mainly covered with paper: Of plastics.” An adhesive label with the country of origin marking “Made in China” is affixed to the rear exterior adjacent to a hinge.
ISSUES:
1. Are Eyeglass Cases #1 and #2 properly classified under 4202.32.9550, HTSUSA?
2. Does the material used to cover Eyeglass Case #4 have an outer surface of plastic sheeting, or of reinforced or laminated plastics, as described by subheading 4202.32.1000 HTSUSA?
Are Eyeglass Cases #3 and #5, constructed of hard molded plastic and having no paper covering, properly classified under 4202.39.1000, HTSUSA, as Articles of plastics, wholly or mainly covered with paper?
What are the country of origin marking requirements of the five eyeglass cases described above?
LAW AND ANALYSIS:
Classification
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.
The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings.
Heading 4202, HTSUSA, covers:
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, toilet bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sport 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.
Emphasis added.
Spectacle (eyeglass) cases are enumerated in Heading 4202. Within 4202, at the six-digit level, subheadings 4202.31, 4202.32, and 4202.39, HTSUSA, cover articles of a kind normally carried in the pocket or in the handbag. The eyeglass cases submitted in question are carried in the pocket or handbag. Because none of the samples submitted have an outer surface of leather, composition leather or of patent leather, they cannot be classified in 4202.31. The eyeglass cases have either an outer surface of plastic sheeting or of textile materials and are classifiable under subheading 4202.32, or are constructed of hard molded plastic and are classifiable under subheading 4202.39, as other. For ease of analysis, the eyeglass cases will be grouped and discussed in accordance with the subheading under which they are categorized.
Subheading 4202.32, HTSUSA
Subheading 4202.32, HTSUSA, encompasses: “Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials.” Emphasis added. Eyeglass Cases #1, #2, and #4, have an outer surface of plastic sheeting or of textile material. Accordingly, they are properly classifiable within subheading 4202.32. It is not proposed that these styles of eyeglass cases should be classified in another subheading at the six-digit level.
4202.32.9550, HTSUSA (Eyeglass Cases #1 and #2)
At the ten-digit level, it is proposed that Eyeglass Cases #1 and #2, be classified under 4202.32.9550, HTSUSA: “Articles carried in the pocket or in the handbag: With outer surface of textile materials: Other: Of man-made fibers.”
Eyeglass Case #1 is carried in the pocket or the handbag, and has an outer surface made of textile materials that are man-made fibers (100 percent polyester). The proposed classification under 4202.32.9550, HTSUSA, is the correct classification.
Eyeglass Case #2 is carried in the pocket or the handbag, and has an outer surface made of textile materials. However, the outer surface of the case is made of a 50 percent polyester and 50 percent cotton blend. Eyeglass Case #2 can be classified under 4202.32.9530, HTSUSA as: “With outer surface of textile materials: Other: Other: Of cotton.” Or it can be classified under 4202.32.9550, HTSUSA as: “With outer surface of textile materials: Other: Other: Of man-made fibers.” GRI 3(b) provides that composite goods consisting of different materials will be classified according to the material that gives them their essential character. Additional U.S Rule of Interpretation 1(d) states that the principles of Section XI regarding mixtures of two or more textile materials shall apply to the classification of goods in any provision in which a textile material is named. Note 2(A), and subheading Note 2(A) to Section XI provide that goods of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material. See HQ 950306, dated January 16, 1992.
Because the outer surface is composed of equal amounts polyester and cotton blend and there is no predominant material, the second paragraph to Note 2(A) to Section XI governs. The second paragraph provides that when no one textile material predominates by weight, the goods will be classified under the heading that occurs last in numerical order among the headings that merit equal consideration. Accordingly, Eyeglass Case #2 is properly classified as “of man-made fibers” under subheading 4202.32.9550, HTSUSA.
4202.32.1000 (Eyeglass Case #4)
At the ten-digit level, it is proposed that Eyeglass Case #4 be classified under 4202.32.2000, HTSUSA, as: “Articles carried in the pocket or in the handbag: With outer surface of plastic or of textile materials: With outer surface of sheeting of plastic: Other.” Inspection of the outer surface of the case reveals that it is constructed of a cellular plastic sheeting that is backed with a knit fabric. Accordingly, the issue is whether the addition of the knit fabric backing to the plastic sheeting is sufficient to categorize the plastic sheeting as “reinforced.” If so, the eyeglass case must be classified under 4202.32.10, HTSUSA, as: “Articles carried in the pocket or in the handbag: With outer surface of plastic or of textile materials: With outer surface of sheeting of plastic: Of reinforced or laminated plastics.”
In Amity Leather Co. and Luggage and Leather Goods Manufacturers of America, Inc. v. United States, Court of International Trade (CIT) Slip Opinion 96-140, the court addressed the meaning and scope of the term “of reinforced or laminated plastics” under the HTSUSA. The plaintiff sought classification under subheading 4202.32.2000 (With outer surface of sheeting of plastic: Other). The court upheld Customs’ ruling that a non-rigid plastic change purse with an outer surface of plastic sheeting backed by a textile material, was classifiable under subheading 4202.32.1000 (With outer surface of sheeting of plastic: Of reinforced or laminated plastics).
The court held that under the HTSUSA, the determination of whether a plastic is “reinforced” does not depend upon the “rigidity” of the plastics, but merely on whether the plastics have been reinforced or laminated with other materials. In reaching its decision, the court noted that the common meaning of the term “reinforced” is different from its prior Tariff Schedule of the United States (TSUS) definition, which included a requirement of rigidity. The Court, in an effort to define “reinforced” as used in 4202.32.1000, HTSUSA, relied upon definitions provided by sources outside the HTSUSA.
The HTSUS does not define the terms “reinforced,” “laminated,” “reinforced plastic,” or “laminated plastic.” These terms are, however, defined in various dictionaries, and “rigidity” is not included among the definitions. Webster’s Third New International Dictionary of the English Language, 1915 (1993), defines “reinforce” as “to strengthen with additional force, assistance, material or support: make stronger or more pronounced.” The American Heritage Dictionary of the English Language, 1522 (3 ed. 1992), defines it as “to strengthen by adding extra support or material.” The Oxford English Dictionary (2d ed. 1989) defines "reinforced plastic" as "plastic strengthened by the inclusion of a layer of fibre (esp. glass)." Webster's Third New International Dictionary Of The English Language 1267 (1993) defines “laminated plastic” as “a plastic made of superposed layers of paper, wood, or fabric bonded or impregnated with resin and compressed under heat.” The American Heritage Dictionary of the English Language 1010 (3d ed. 1992) defines “laminated” as composed of layers bonded together.”
Amity Leather Co., 20 C.I.T. 1049 at 1052-53.
None of the definitions of “reinforced plastic” relied upon by the court in Amity Leather Co. included a requirement of rigidity. In fact, all of the definitions had the common element of combining, bonding, or the addition of, one material such as woven fabric, to another material such as plastic sheeting.
Customs applied the definition of “reinforced” set forth in Amity Leather Co. in Headquarters Ruling Letter (HQ) 961549, dated July 27, 1998. The items under consideration in that case, as in this case, were eyeglass cases that had an outer surface of plastic sheeting that was adhered to a woven fabric. Originally, in NY 812652, Customs had classified the eyeglass cases under 4202.32.2000, HTSUSA: “As articles of a kind normally carried in the pocket or in the handbag: With an outer surface of sheeting of plastic: Other.” On reconsideration, Customs revoked NY 812652 and ruled that the eyeglass cases in question should have been classified under 4202.32.1000, HTSUSA as: “Articles of kind carried in the pocket or in the handbag: With outer surface of plastic or of textile materials: With outer surface of sheeting of plastic: Of reinforced or laminated plastics.” Central to Customs’ ruling was the fact that the adhering of the woven fabric to the plastic sheeting served to strengthen the plastic sheeting, preventing it from stretching and tearing.
In the instant case, absent a showing that the textile fabric adhered to the outer sheeting of plastic serves no strengthening function, and in accordance with Amity Leather Co., the outer plastic sheeting of Eyeglass Case #4 will be deemed to be reinforced for the purposes of 4202.32.1000, HTSUSA. The proper classification for Eyeglass Case #4 is under subheading 4202.32.1000, HTSUSA.
Subheading 4202.39.9000, HTSUSA (Eyeglass Cases #3 and #5)
Subheading 4202.39, HTSUSA, encompasses: Articles of a kind normally carried in the pocket or in the handbag: Other: Other. Emphasis added. Eyeglass Cases #3, and #5, are carried in the pocket or handbag, and have an outer surface of hard molded plastic. Because there is no other subheading that encompass eyeglass cases constructed of molded plastic, the proper classification is 4202.39.9000, HTSUSA.
It is proposed that these eyeglass cases be classified under subheading 4202.39.1000, HTSUSA. This would require that the eyeglass cases be made of a material, in this case plastic, which is covered wholly or mainly, with paper. Even a cursory glance at the eyeglass cases reveals that there is no paper whatsoever contained in the construction of the outer surface. Headquarters Ruling Letter (HQ), 960990, dated February 3, 1998, summarized the meaning of “outer surface” as follows:
At the six-digit level, the nomenclature classifies the majority of goods in Chapter 42 by the material which comprises the “outer surface.” HQ 954021, dated November 1, 1993, citing HQ 087760, dated October 31, 1991, and HQ 087640, dated November 8, 1990. The term “outer surface of” is not defined in Chapter 42, nor anywhere else in the HTSUSA. In HQ 086775, dated July 9, 1990, Customs stated that the outer surface “is that which is both visible and tactile.” See 954021 and the cases cited therein. “Tactile” is defined as follows: “1. Perceptible to the touch: TANGIBLE.” “Tangible” is defined as follows: “1a. Discernible by the touch or capable of being touched.” Webster’s II New Riverside University Dictionary, (1984) at 1178 and 1182, respectively.
Accordingly, because there is no paper that is discernable on the outer surface of Eyeglass Cases #3 and #5, they are to be classified under 4202.39.9000, HTSUSA.
Country of Origin Marking
The marking statute, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. §1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), requires that the marking be conspicuous enough that an ultimate purchaser will be able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling.
The last sentence of 19 U.S.C. §1304(b) provides that “usual containers in use as such at the time of importation shall in no case be required to be marked to show the country of their own origin.” A “usual container” is defined in section 134.22(d)(1), Customs Regulations (19 CFR §134.22(d)(1)), as:
For purposes of this subpart, a usual container means the container in which a good will ordinarily reach its ultimate purchaser. Containers which are not included in the price of the goods with which they are sold, or which impart the essential character to the whole, or which have significant uses, or lasting value independent of the contents, will generally not be regarded as usual containers. However, the fact that a container is sturdy and capable of repeated use with its contents does not preclude it from being considered a usual container so long as it is the type of container in which its contents are ordinarily sold. A usual container may be any type of container, including one which is specially shaped or fitted to contain a specific good or set of goods such as a camera case or an eyeglass case, or packing, storage and transportation materials.
Section 134.22(d)(2), Customs Regulations (19 CFR §134.22(d)(2)), provides that:
A good of a NAFTA country which is a usual container, whether or not disposable and whether or not imported empty or filled, is not required to be marked with its own country of origin. If imported empty, the importer must be able to provide satisfactory evidence to Customs at the time of importation that it will be used only as a usual container (that it is to be filled with goods after importation and that such container is of a type in which these goods ordinarily reach the ultimate purchaser).
Furthermore, 19 CFR 134.24(c)(1) states that when usual containers which are goods of a NAFTA country are imported by persons or firms who fill or package them with various products they sell, those persons or firms are considered the ultimate purchasers of the containers, and they may be excepted from individual marking. However, the outside wrappings or packages holding the containers must be marked to clearly indicate the country of origin of the containers. In Headquarters Ruling Letter (HRL) 558985, dated May 12, 1995, pouches from Mexico were combined after importation with Oakley sunglasses. We found that the pouches were “usual containers” within the meaning of 19 CFR 134.22(d)(1) and as goods of a NAFTA country they were not required to be marked with their own country of origin provided that satisfactory evidence was presented to Customs at the time of importation to establish that the pouches would be filled with sunglasses and only be used as usual containers.
In this case, eyeglass cases are specifically mentioned in 19 CFR 134.22(d)(1), as an example of a usual container. However, the cases in this situation will be imported empty. The information presented also indicates that the eyeglass cases will either be separately sold at retail or given to retail purchasers as containers for the eyeglasses they purchase. Therefore, the eyeglass cases in this situation may only be considered “usual containers” if, in fact, they will be used as containers in which an ultimate purchaser will ordinarily receive sunglasses.
Accordingly, in regard to the eyeglass cases sold separately without the eyeglasses, they will not be considered “usual containers” within the definition of 19 CFR 134.22(d)(1) because they will not be containers in which eyeglasses reach the ultimate purchasers. Therefore, the eyeglass cases which are sold separately would be required to be marked with their own country of origin.
In regard to the eyeglass cases that will be given away to retail purchasers of eyeglasses as part of their purchase, these cases will be considered usual containers, within the definition of 19 CFR 134.22(d)(1). However, as the Chinese-origin cases will not be used as such at the time of importation, they may not be excepted from being marked with their own country of origin pursuant to 19 U.S.C. 1304(b). As to the Canadian origin cases stated to be filled with sunglasses after importation, they may be excepted from country of origin marking pursuant to 19 CFR 134.22(d)(2), provided that the importer is able to provide satisfactory evidence to Customs at the time of importation that the eyeglass cases will be used only as usual containers (i.e. that they will be filled with goods after importation and that such containers are of the type in which these goods ordinarily reach the ultimate purchaser).
All of the sample eyeglass cases are marked with their country of origin. Accordingly, it is necessary to determine whether the country of origin markings on the sample eyeglasses cases are sufficiently conspicuous and legible to satisfy the requirements of 19 U.S.C. 1304 and 19 CFR 134.41. In HRL 733940, dated October 24, 1991, Customs considered certain factors in determining if the country of origin marking on an article was conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. §1304. Among the factors considered was the size of the marking, the location of the marking, whether the marking stood out, and the legibility of the marking. The size of the marking had to be large enough so that the ultimate purchaser could easily see the marking without strain. The location of the marking had to be in a place on the article where the ultimate purchaser could expect to find the marking or where it could be easily noticed from a casual inspection. Whether the marking stood out was dependent on where it appeared in relation to other print on the article and whether it was in contrasting letters with the background. The legibility of the marking concerned the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain.
Upon examination, we believe that the country of origin markings on the five sample eyeglass cases can be easily found from a casual inspection and that the marking can be read without strain. We also find the label on eyeglass case # 5 to be of sufficient adhesion to be considered permanently marked. Accordingly, we find that the country of origin markings on the five sample eyeglass cases satisfy the requirements for conspicuousness, legibility, and permanence of 19 CFR 134.41 and 19 U.S.C. 1304.
HOLDING:
1. Eyeglass Cases #1 and #2 are classifiable in subheading 4202.32.9550, HTSUSA, under the provision for: “Articles of a kind normally carried in the pocket or in the handbag: With outer surface of plastic sheeting or of textile materials: With outer surface of textile material: Other: Other: Of man-made fibers.” They are dutiable at the general one column rate of 18.6 percent ad valorem.
2. Eyeglass Case #4 is classifiable in subheading 4202.32.1000, HTSUSA, under the provision for: “Articles of a kind normally carried in the pocket or in the handbag: With outer surface of plastic sheeting or of textile materials: With outer surface of plastic sheeting: Of reinforced or laminated plastics.” It is dutiable at the general one column rate of 12.1¢ per kilogram plus 4.6 percent ad valorem.
3. Eyeglass Cases #3 and #5 are classifiable in subheading 4202.39.9000, HTSUSA, under the provision for: “Articles of a kind normally carried in the pocket or in the handbag: Other: Other.” They are dutiable at the general one column rate of 20 percent ad valorem.
4. The eyeglass cases which are sold separately without eyeglasses will not be considered “usual containers” within meaning of 19 CFR 134.22(d)(1) and thus must be marked to indicate their own country of origin. The eyeglass cases of Chinese origin which will be given away to retail purchasers of eyeglasses as part of their purchase may not be excepted from marking pursuant to 19 U.S.C. 1304(b), as they will not be used as usual containers at the time of importation. The eyeglass cases of Canadian origin which will be given away to retail purchasers will be considered usual containers, and may be excepted from having to be marked with their country of origin provided that the requirements of 19 CFR 134.22(d)(2) are satisfied. The country of origin markings on the five sample eyeglass cases satisfy the requirements for conspicuousness, legibility, and permanence of 19 CFR 134.41 and 19 U.S.C. 1304.
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 the importer 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, the importer 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
Commercial Rulings Division