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HQ 959966




August 13, 1997

CLA-2 RR:TC:TE 959966 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9025

Ms. Mona Webster
Import Customs Specialist
Target Stores
P.O. Box 1392
Minneapolis, MN 55440-1392

RE: Classification of a pencil binder pouch; heading 6307; other made up articles; heading
4202; heading 3923; Totes v. United States, 69 F. 3d 495 (1995); sacks and bags of other plastics; ejusdem generis; pen-cases and "similar containers"

Dear Ms. Webster:

This is in reply to your letter of October 14, 1996, seeking a classification ruling on a pencil binder pouch from China. You submitted a sample to aid us in our determination.

FACTS:

The merchandise under consideration is a binder pouch constructed of a plastic sheeting backed with woven fabric. It measures 4 inches by 10 inches and has a zipper front. The pouch has an elastic strap in the back designed to be slipped over the cover of a standard ring binder and is used to hold supplies (i.e., pencils, etc.) and/or personal items. It is referenced as article number 819-609.

In your letter you state that "Binding Ruling NY 862819 dated May 10, 1991 classified a similar item under 6307.90.9490 . . . [b]ased on this ruling we feel that the correct classification is 3923.29.0000 @ 3%." Based on your statement, it is not clear under which tariff provision you seek classification for the binder pouches. However, we will address all the relevant provisions, including the two you mention.

ISSUE:

Is the pencil binder pouch classifiable under heading 6307, HTSUSA, as other made up articles, under heading 3923, HTSUSA, as sacks and bags of other plastics, or under heading 4202, HTSUSA, as a "similar container?"

LAW AND ANALYSIS:

Classification of goods under the 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 and any relative section or chapter notes. You refer to subheading 3923.29 which encompasses sacks and bags of other plastics and to subheading 6307.90, which includes other made up textile articles.

Heading 4202 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 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 Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has, therefore, been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

The EN to heading 4202 state that the expression "similar containers" in the second part of the heading (after the semicolon) includes, among other things, note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, etc.

In the case of Totes v. United States, 69 F. 3d 495 (1995), the appellant challenged the classification of a trunk organizer as a "similar container" under heading 4202, contending that it should have been classified as a motor vehicle accessory in heading 8708, HTSUSA. The court held that the trunk organizer case shared the essential characteristics of the containers listed in subheading 4202.92, i.e., to organize, store, protect and carry various items. The court stated:

Under the rule of ejusdem generis, which means "of the same kind," where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.

Moreover, the court reasoned that the trunk organizer is similar to tool bags listed in the EN to 4202 as an example of merchandise classifiable under that heading. Thus, the court held that the tariff provision for "similar containers" in heading 4202 more specifically described the merchandise than the provision for parts and accessories of motor vehicles in heading 8708. The court further stated that:

Containers' which have the one principal function of containing, even though encompassing a wide variety thereof, is a more specific term that accessory' which can include a wide variety of items having many different functions.

In light of Totes, we find that the binder pencil pouch, like the pen-cases referred to in the EN, is ejusdem generis or "of the same kind" of merchandise as exemplified in heading 4202. It possesses the essential characteristics or purposes of those articles, i.e., to organize and store merchandise - in this case pencils. Furthermore, heading 4202 describes the binder pouch more specifically than heading 6307 (other made up articles) or 3923 (sacks and bags of other plastics).
Finally, Section 152.16(b) of the Customs Regulations (19 CFR 152.16(b)) reads:

The principles of any court decision favorable to the Government shall be applied to merchandise, though not identical with the merchandise the subject of the court's decision, if its classification is affected by such principles, provided that it has been entered or withdrawn for consumption after 30 days from the date of publication of the court's decision in the Customs Bulletin.

The principles of the Totes decision apply to the classification of your merchandise and the ruling you cite (NY 862819) is, therefore, not controlling.

HOLDING:

The binder pencil pouch is classifiable under subheading 4202.92.9025, HTSUSA, which provides for, among other things, other containers with an outer surface of textile materials or a sheeting of plastics. It is dutiable at the general column rate at 19.3 percent ad valorem and falls within textile category 670.

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 renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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, you should contact your local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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