CLA-2 RR:CR:TE 965266 mbg
Ms. Siegi Spyropoulos
Allergan International
2525 Dupont Drive
Irvine, CA 92715
RE: Classification of a plastic contact lens case; Revocation of HQ 082698
Dear Ms. Spyropoulos:
On February 21, 1990, U.S Customs issued Headquarters Ruling Letter (“HQ”) 082698 to your company regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of a plastic contact lens case. Upon review of HQ 082698, Customs has determined that the contact lens case was erroneously classified and HQ 082698 is hereby revoked for the reasons set forth below.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on January 9, 2002, in Vol. 36, No. 2 of the Customs Bulletin, proposing to revoke HQ 082698 and to revoke the treatment pertaining to the classification of a plastic contact lens case. No comments were received in response to this notice.
FACTS:
The subject merchandise is a container used for the storage of contact lenses when the lenses are not worn. The merchandise is manufactured of molded plastic and measures approximately 1 inch wide, ½ of an inch high and 2 ¼ inches long. A contact lens is intended to be stored in each side of the container. The merchandise has two caps, labeled “L” and “R”, which screw onto the base of the container. You have stated that the lens case was manufactured in Taiwan.
ISSUES:
Whether the subject contact lens case of molded plastic is properly classified in Chapter 39 as an article of plastics or in Chapter 42 as a container under the HTSUSA?
Whether the subject contact lens case is considered an “article for the conveyance of goods” in heading 3923, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification shall be determined according to the terms of the heading 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”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
Due to the plastic construction and intended purpose of the subject merchandise, multiple tariff headings must be considered for proper classification. The competing headings under the HTSUSA which must be considered for classification of the subject merchandise include: heading 3923, which provides for inter alia, articles for the conveyance or packing of goods, of plastics and heading 4202, which provides for, inter alia, containers.
I. Classification within Chapter 39, HTSUSA
A. Heading 3923, HTSUSA
Heading 3923, HTSUS, provides for articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics. Legal Note 2(ij), to Chapter 39 excludes from Chapter 39, saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202, HTSUS. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 3923 state:
The heading excludes, inter alia, household articles such as dustbins, and cups which are used as tableware or toilet articles and do not have the character of containers for the packing or conveyance of goods, whether or not sometimes used for such purposes (heading 39.24), containers of heading 42.02 and flexible intermediate bulk containers of heading 63.05.
The articles enumerated in the EN’s to heading 3923, clearly indicate items, which by the nature of their size or use, are designated for a commercial purpose and not for “household use”. The contact lens case is intended for personal use in order to store, transport and protect the contact lenses when not worn by the individual. The small size of the case, which is intended to only hold one pair of contact lenses, would preclude any sort of “commercial” application and therefore classification of the subject merchandise is precluded from heading 3923, HTSUSA.
In HQ 963501, dated March 23, 2000, Customs reviewed the scope of heading 3923 and the types of articles said to be for articles for the conveyance or packaging of goods in a commercial sense. In HQ 963501, concerning the classification of a plastic tissue box, Customs stated:
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 tissue box is designed to carry personal effects and is not designed to carry bulk or commercial goods. Accordingly, the tissue box is not properly classifiable in heading 3923, HTSUSA.
In regards to the subject contact lens case, Customs reaffirms the holding in HQ 963501, and similarly finds that the contact lens case is not classifiable in heading 3923, HTSUSA, as it is not designed to transport bulk or commercial goods. Customs is in the process of reviewing prior rulings which have erroneously classified molded plastic articles of a personal nature such as contact lens cases, pencil holders, etc, within heading 3923, HTSUSA, and will revoke or modify any such rulings accordingly.
B. Heading 3926, HTSUSA
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 indicate that the heading is the basket provision for plastic articles not described more specifically elsewhere in the tariff schedule. Customs finds that the plastic article is not classified in heading 3926, HTSUSA, because the contact lens case, which is specially shaped and fitted to hold contact lenses, is more specifically described in heading 4202, HTSUSA, for the reasons set forth below.
II. Classification within Chapter 42, HTSUSA
As previously stated, Legal Note 2 (ij) to Chapter 39, HTSUSA, provides, “This chapter does not cover. . . trunks, suitcases, handbags or other containers of heading 4202; .”
For application of this Legal Note, a determination must be made as to whether the subject contact lens case is considered a “container of 4202.” The articles specifically enumerated within heading 4202, HTSUSA are “Trunks, suitcases, vanity cases, attaché 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 boxes, 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 .”
The EN to heading 4202 state, in pertinent part:
This heading covers only the articles specifically named therein and similar containers.
These containers may be rigid or with a rigid foundation, or soft and without foundation.
[T]he articles covered by the first part of the heading may be of any material. The expression “similar containers” in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.
The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.). The expression “similar containers” in this second part includes note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewellery rolls, shoe-cases, brush-cases, etc
As referenced above, heading 4202, HTSUSA, is divided into two portions. Those articles listed before the semi-colon are not restricted as to the material composition, whereas those articles listed in the second portion must be constructed of the materials specifically listed in the tariff i.e., 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. Application of the ENs to the subject merchandise would preclude classification within the second part of heading 4202 due to the molded plastic construction which is not a material specifically named in the second part of the heading. See Headquarters Ruling Letter (HQ) 950779, dated April 1, 1992.
However, since goods in the first part of the heading may be of any material, classification may be proper if the merchandise is determined to be specifically shaped and fitted. The first portion of heading 4202, HTSUSA, specifically 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.
However, this heading encompasses the articles enumerated, as well as containers similar to these articles and is therefore relevant for discussion of the subject contact lens case. Under the rule of ejusdem generis, the phrase “similar articles” is limited to goods which “possess the essential characteristics or purposes that unite the articles enumerated eo nomine.” Totes, Inc. v. U.S., 69 F.3d 495, 498 (Fed. Cir. 1995) (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390 (Fed. Cir. 1994)).
Furthermore, 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 the 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. It is evident from the above referenced court case that a broad interpretation as to the types of articles that are classifiable as similar containers to those named in heading 4202, is clearly supported and upheld by the Court of International Trade. The subject contact lens case is of a kind designed to provide storage, protection, organization and to a certain extent portability, purposes which unite the exemplars of heading 4202, HTSUS, as confirmed in Totes.
Pursuant to the rule of ejusdem generis, contact lens cases have previously been classified in heading 4202, HTSUSA, in New York Ruling Letter (“NY”) B87047, dated July 23, 1997, and NY A83640, dated June 12, 1996. However, in each of these rulings the contact lens cases under consideration were not constructed of molded plastic. In NY B87047, the contact cases was constructed of leather and in NY A83640, the contact case was constructed with an outer surface of textile materials.
As the contact lens case is not one of the named exemplars, its classification in the first portion of heading 4202, HTSUSA, depends on its similarity to one of the named articles. The contact lens case is not similar to the first six articles. The first six articles are generally large articles, often hand-carried by means of an attached handle and used to carry items other than smaller items normally carried in the pocket or handbag. The contact lens case is small and designed to carry only one pair of contact lenses with one lens placed in each compartment. Therefore, the contact lens case is somewhat similar to the remaining six articles in the first part of the heading. These six containers are made to carry one specific article (although some 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. Accordingly, we find that the contact lens case is classifiable as a specially shaped or fitted container in the first part of heading 4202, HTSUSA.
HOLDING:
HQ 082698, dated February 21, 1990 is hereby revoked.
The subject contact lens case is properly classified in subheading 4202.39.9000, HTSUSA, which provides for “Trunks, . . . , spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; . . . . : Articles of a kind normally carried in the pocket or in the handbag: Other: Other.” The general column one duty rate is 20 percent ad valorem.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division