CLA-2 RR:CR:TE 963493 SS
Ms. Dianne Rothhammer
Rothhammer International Inc.
P.O. Box 2959
Lancaster CA 93539-2959
RE: Reconsideration of Headquarters Ruling Letter 083131; Surf Kit; Molded Plastic Tote Tube; Other Article of Plastic; Heading 3926, HTSUSA; Not Article of Plastic for the Conveyance or Packing of Goods, Heading 3923, HTSUSA; Not Travel Goods and Similar Containers, Heading 4202, HTSUSA
Dear Ms. Rothhammer:
This letter is pursuant to Headquarters’ reconsideration of Headquarters Ruling Letter (HQ) 083131, dated September 13, 1989, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a molded plastic tote tube.
This letter is to inform you that after review of that ruling, it has been determined that the classification of the molded plastic tote tube in subheading 3923.10.00, HTSUSA, is incorrect. As such, HQ 083131 is revoked pursuant to the analysis which follows below.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of HQ 083131 was published on February 16, 2000, in the Customs Bulletin, Volume 34, Number 7. No comments were received.
FACTS:
The molded plastic tote tube which is the subject of this ruling was described in HQ 083131 as follows:
The merchandise at issue is called a "surf kit" by the inquirers. It is to be used on or around the beach to keep small items dry. It is made of molded plastic and is 4" tall and 3" wide. The top does come off, but is kept together by a cord which runs through the bottom and the top. It is designed to be carried on the person by hanging the cord around the wearers neck. Small items are placed in the tube for protection from water and sand.
ISSUE:
What is the proper classification of the molded plastic tote tube under the HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (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 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Three headings are under consideration: heading 4202, HTSUSA, which covers, among other things, travel goods, handbags and similar containers; heading 3923, HTSUSA, which covers, among other things, articles of plastic for the conveyance or packing of goods; and heading 3926, HTSUSA, which covers other articles of plastic.
Heading 4202, HTSUSA, 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:
Heading 4202, HTSUSA is divided into two portions. Articles listed before the semicolon are not restricted as to material composition, whereas articles listed in the second portion must be of leather or composition leather, of sheeting of plastics, of textile material, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper.
The first portion of heading 4202, HTSUSA, lists trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers. The EN to heading 4202, HTSUSA, state that the expression "similar containers" in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, etc. As the tote tube is not one of the named articles, its classification in the first portion of heading 4202, HTSUSA, depends on its similarity to one of the named articles. The tote tube is not similar to the first six articles. The first six articles are large articles, often hand carried by means of an attached handle and used to carry items other than small items normally carried in the pocket or handbag. The tote tube is small, constructed to be worn around the neck and designed to carry small items like keys, money or cigarettes. The tote tube is also distinguishable from the remaining six articles. The remaining six articles are containers made to carry one specific article (although they may also accommodate small accessories or parts like a lens cap or cleaning rod) and are often form fitted to the particular item to be carried. The tote tube is capable of carrying numerous small items and is not fitted to any one particular item. Accordingly, we find that the tote tube is not classifiable in the first portion of heading 4202, HTSUSA.
If the tote tube is to be considered for classification under the second portion of heading 4202, HTSUSA, it must be of, or wholly or mainly covered with one of the specified materials or with paper. The tote tube is clearly not of, or covered with, leather, composition leather, plastic sheeting, textile material, vulcanized fiber, paperboard or paper. The tote tube is made from molded plastic and cannot be considered for classification under the second portion of heading 4202, HTSUSA. See Headquarters Ruling Letter (HQ) 950779, dated April 1, 1992.
The next heading under consideration is heading 3923, HTSUSA. Heading 3923, HTSUSA, provides for, in pertinent part, articles for the conveyance or packing of goods, of plastics. The EN to heading 3923, HTSUSA, state that the “heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products." The EN also state that the heading includes containers such as boxes, cases, crates, sacks and bags (including cones and refuse sacks), casks, cans, carboys, bottles and flasks.
As evidenced by the prior ruling, HQ 083131, articles known as “tote tubes” have previously been classified under heading 3923, HTSUSA. In HQ 082829, dated March 6, 1990, another molded plastic tote tube designed to house money, keys, etc., during sporting events when carrying a wallet or purse would be inconvenient was classified under heading 3923, HTSUSA. Additionally, in HQ 950779, dated April 1, 1992, Customs classified another molded plastic container designed to protect personal articles such as money, credit cards, keys, cigarettes, a lighter, watch or film from water, sand, shock or theft under heading 3923, HTSUSA. Customs explained that the tote tubes were used to convey goods, i.e., the wearer used them to transport their personal belongings about from place to place. For additional rulings classifying similar items under heading 3923, HTSUSA, see New York Ruling Letter (NY) 850984, dated April 11, 1990; NY 857481, dated November 14, 1990; NY 858432, dated December 21, 1990; NY 860135, dated February 13, 1991; NY 866303, dated September 4, 1991; NY 872534, dated March 26, 1992; NY 877398, dated September 4, 1992; NY 886229, dated June 9, 1993; and NY 809523, dated May 9, 1995.
However, these rulings no longer represent Customs position regarding the classification of tote tubes. Customs first began to reconsider the scope of heading 3923, HTSUSA, by noting that the exemplars listed in the EN to heading 3923, HTSUSA, were used generally to convey or transport goods over long distances and often in large quantities. See HQ 087635, dated October 24, 1990; HQ 951404, dated July 24, 1992; and HQ 953841, dated September 27, 1993. Next, Customs indicated that heading 3923, HTSUSA, was generally reserved for articles used for shipping purposes. See HQ 089825, dated April 9, 1993; HQ 953275, dated April 26, 1993; and HQ 953458, dated April 16, 1993. In 1993, Customs took the position that heading 3923, HTSUSA, provided for cases and containers of bulk goods and commercial goods and not personal items. See HQ 954072, dated September 2, 1993. This position has been consistently followed since 1993. See HQ 954816, dated December 7, 1993; HQ 955660, dated September 27, 1994; HQ 955047, dated October 6, 1994; HQ 957894, dated December 14, 1995; HQ 957895, dated December 14, 1995; HQ 958174, dated January 31, 1996; HQ 959116, dated January 7, 1997; HQ 960199, dated May 15, 1997; HQ 960430, dated December 24, 1997; HQ 959780, dated February 17, 1998; HQ 959522, dated May 20, 1998; HQ 959846, dated October 28, 1998; HQ 961517, dated November 6, 1998; HQ 961049, dated January 5, 1999; and HQ 960811, dated February 3, 1999. Items such as sequined beaded waist bags, molded plastic carrying cases for drawing materials, molded plastic tote bags, molded plastic pencil cases and molded plastic hinged cases for computer disks have been classified outside of heading 3923, HTSUSA, based on findings that the articles were designed to carry personal effects. See HQ 954816, HQ 957894, HQ 959116, HQ 960199 and HQ 959780 (cited above). Similarly, the tote tube is designed to carry personal effects and is not designed to carry bulk or commercial goods. Accordingly, the tote tube is not properly classifiable in heading 3923, HTSUSA.
We note that Customs has previously revoked a series of rulings which classified containers used for personal articles under heading 3923, HTSUSA. In HQ 960199, dated May 15, 1997, Customs revoked an earlier ruling, NY 887467, dated July 9, 1993, which classified a plastic molded pencil box under heading 3923, HTSUSA, and reclassified the article under heading 3926, HTSUSA. Citing to the rulings which state that heading 3923, HTSUSA, provides for cases and containers of bulk goods and commercial goods, not personal articles, Customs found that the pencil boxes transported pens, pencils, erasers, etc. for personal use and were not described by heading 3923, HTSUSA. For other rulings consistent with this position see: HQ 960196, dated May 15, 1997; HQ 960198, dated May 15, 1997; HQ 960152, dated May 15, 1997; HQ 960153, dated May 15, 1997; HQ 960154, dated May 15, 1997; HQ 960155, dated May 15, 1997; HQ 960157, dated May 15, 1997; HQ 961058, dated May 15, 1997; and HQ 959402, dated May 15, 1997. Following this rationale, the tote tube which is used to transport and store personal articles is also precluded from classification under heading 3923, HTSUSA.
Finally, heading 3926, HTSUSA, provides for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914.” The EN to heading 3926, HTSUSA, indicate that the heading is the basket provision for plastic articles not described more specifically elsewhere in the tariff schedule. The tote tube is not described more specifically elsewhere in the tariff schedule. In HQ 959116 (cited above) Customs classified a molded plastic tote bag which was designed to store, carry and otherwise hold personal articles such as beach items or a blanket under heading 3926, HTSUSA. Finding that the tote tube is similar to the molded plastic tote bag, we conclude that the tote tube is properly classifiable under heading 3926, HTSUSA.
HOLDING:
The molded plastic tote tube is properly classifiable in subheading 3926.90.9880, HTSUSA, the provision for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other.” The general column one duty rate is 5.3 percent ad valorem.
HQ 083131 dated September 13, 1989, is hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division