CLA-2 RR:CR:GC 965897 BJB
Port Director
U.S. Customs Service
605 West Fourth Avenue
Anchorage, AK 99501
RE: Internal Advice 02/001; Cellular Telephone Holder; Holster
Dear Port Director:
This is in reply to your memorandum of September 10, 2002, and addendum, dated September 27, 2002, requesting internal advice concerning the tariff classification of a plastic cellular telephone holder (“holder”).
FACTS:
You have requested internal advice concerning the tariff classification of a plastic cellular telephone holder imported by Motorola, Inc., (“Motorola”). In your view, the subject good is a “holster,” described under heading 4202, HTSUS. Motorola classified the subject good at entry under heading 4202, HTSUS, as a “holster.” In a letter dated October 28, 2002, Motorola claims the subject holder is classifiable under heading 3926, HTSUS, as “[o]ther articles of plastics[.]” Motorola has submitted pictures, specifications, and a sample holder, model # 0185790.
The holder is made of injection molded hard plastic. It is designed with a cavity wherein a cellular telephone may be snapped into place. A plastic clip is attached to the back side of the holder. This clip is not a separate unit. It attaches to the consumer’s belt, waistband, or clothing.
ISSUE:
What is the classification under the HTSUS of the subject cellular telephone holder?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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’s may then be applied.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), 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. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration are as follows:
Other articles of plastics and articles of other materials of headings 3901 to 3914:
Other:
3926.90.98 Other . . . . .
* * * * * *
Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical cases, gun cases, holsters and similar containers; . . . [emphasis added.]
Other:
4202.99.90 Other[.]
* * * * * *
At GRI 1, heading 3926, HTSUS, in pertinent part, provides for “[o]ther articles of plastics[.]” However, note 2(ij) to chapter 39 provides that “[t]his chapter does not cover: “. . . trunks, suitcases, handbags or other containers of heading 42.02[.]” Heading 4202, in pertinent part, provides for “gun cases, holsters and similar containers[.]” Thus, we must first determine whether the subject holders are classifiable under heading 4202, HTSUS.
The issue is whether the subject holder qualifies as a “holster,” or a “similar container,” as described in the first part of heading 4202, HTSUS.
The term “holster” in heading 4202, HTSUS, is not defined in the tariff or the ENs. EN 42.02 provides, that the “[h]eading covers only the articles specifically named therein and similar containers. . . .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.”
However, Merriam-Webster’s Collegiate Dictionary, 10th Ed., (1999) (p.554), defines “holster” as: “a leather or fabric case for carrying a firearm on the person (as on the hip or chest), on a saddle, or in a vehicle[.]” McGraw-Hill Dictionary of Scientific and Technical Terms (2002), provides that a “holster” is “[a] pocket-type device with a single compartment designed to be worn on a belt or shoulder harness, which may be furnished with it, and used to carry a pistol, revolver, or the like.”
The subject holder does not meet the above definitions. It is not for carrying a firearm or similar article on the person. A cellular telephone is unlike a firearm or knife as it does not pose a physical danger to the carrier if left uncovered. Further, the subject holder does not provide a pocket-type device with a covered compartment or case.
The holder has a cavity formed by curved plastic sides, however, when a telephone is placed within, approximately two-thirds of the telephone surface is exposed. The front of the holder is almost entirely open as the sides are connected across its front by a slender quarter-inch band of plastic.
The tariff heading description indicates that a “holster” is a distinct commercial good. Motorola advertising literature calls the subject good a “carry holster.” Based upon the patent application materials of similar goods you have submitted, these goods are not described as “holsters.” They are specifically described as “’holder[s]’ for detachably affixing a portable apparatus, such as a cellular phone.” This conflicting information as to the commercial designation for the good supports instead reliance on the common meaning of the term “holster” to construe its application here.
See THK America, Inc., v. United States, 17 C.I.T. 1169, 1174, 837 F. Supp. 427, 432 (1993).
You further state that the subject holder meets the definition of “holster,“ as it holds a cellular telephone, attaches to a belt or the outside of clothing, provides partial protection for the telephone, and facilitates its portability.
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 residual provision for “similar containers” in heading 4202, the Court found that the rule of ejusdem generis requires only that merchandise classifiable under heading 4202, possess the essential character or purpose running through all of the enumerated exemplars. EN(c) to heading 4202 indicates that the heading does not cover articles which, although they may have the character of containers, are not similar to those enumerated in the heading.
Applying the Totes criteria in its examination of the classification of jewelry presentation boxes in Jewelpak Corporation v. United States, the Court held that for a container to be ejusdem generis with the exemplars of heading 4202, HTSUS, not all four essential characteristics and purposes need be present in all instances. See Jewelpak Corporation v. United States, 97 F. Supp. 1192 (Ct. Int’l Trade 2000), aff’d, 297 F.3d 1326 (Fed. Cir. 2002).
In considering the Totes criteria for this good, we note that cellular telephones are generally small, lightweight, and highly portable. The subject holder attaches to the consumer’s belt or clothing to carry a cellular telephone from place to place.
The holder holds only one cellular telephone and has no interior fittings or other features designed to organize additional contents. It clearly does not have an organizational use.
The holder provides little in the way of protection. The telephone’s essential number keypad and LCD face remain substantially exposed when placed in the holder and clipped to the consumer’s belt.
The holder also has no pocket, pouch, or container compartment of the type referred to in EN 42.02 or the definitions cited above. Gun holsters and knife sheaths generally do have such covering or case, as provided in the definitions cited above. Their contents may, therefore, be stored away. A cellular telephone inserted into the subject holder may be snapped into place, to prevent it from falling out, but the telephone always remains exposed to risks of being damaged. This open design negates both its ability to protect and its capacity to store.
Despite the conclusion noted above in Jewelpak, we find that the subject holder does not sufficiently meet the Totes criteria to be similar to the containers of heading 4202, HTSUS.
The subject good is more accurately classifiable under heading 3926, HTSUS, which provides for, in pertinent part, “[o]ther articles of plastics[.]”
Our determination is supported by New York Ruling (“NY”) H88845, dated March 19, 2002. In NY H88845, Customs determined that a similar plastic cellular telephone holder with clip, even though referred as a “holster,” was classifiable under subheading 3926.90.98, HTSUS, supra.
HOLDING:
The subject cellular telephone holder is classifiable in subheading 3926.90.98, HTSUS, as: [o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other[.]”
This decision should be mailed to the importer no later than 60 days from the date of this letter. 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division