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HQ 960218




October 22, 1997
CLA-2 RR:TC:TE 960218 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901

RE: Request for reconsideration of NY A88906; classification of a PVC case for glasses; heading 4202, HTSUS; substantial construction; repeated use; heading 4202, HTSUS

Dear Messrs. Siegel, Mandell & Davidson:

This is in response to your letter, dated January 31, 1997, on behalf of your client, Marchon Eyewear, Inc., regarding your request for reconsideration of New York Ruling (NY) A88906, dated November 26, 1996, addressing the classification of a PVC case for glasses under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination.

FACTS:

The subject merchandise, measuring approximately 6 inches by 2.25 inches by 2.25 inches, is a rectangular case made of clear polyvinyl chloride plastic sheeting (PVC) material and features a tongue and groove slider closure along the top side. It is assumed that the case will be imported empty and subsequent to importation the case will serve as a carrying case for eyewear. The sample features the logo "CK Eyewear" printed on the face of the case.

In NY A88906, the eyeglass case was classified in subheading 4202.92.4500, HTSUSA, which provides for, among other things, other containers, with outer surface of plastic or of textile materials, travel, sport or similar bags . You disagree with that classification and instead, propose classification in subheading 3923.10.0000, HTSUSA, which provides for, among other things, articles for the conveyance and packing of goods, of plastics, boxes, cases, crates and similar articles. In the alternative, you propose subheading 3923.29.0000, HTSUSA, which provides for, among other things, sacks and bags. In support of this classification you make reference to:

1. NY 802585, dated October 26, 1994; HQ 884585, dated April 16, 1993; HQ 892740, dated December 10, 1993; NY A84550, dated June 14, 1996 and HQ 087437, dated September 1, 1990. These rulings are cited as evidence that bags and cases of significantly greater durability than the plastic packaging at issue are not designed for prolonged use and therefore not classifiable in heading 4202, HTSUS;

2. Headquarters Decision (HQ) 953077, dated December 28, 1995; HQ 082831, dated February 26, 1990 and HQ 082998, dated October 23, 1989. These rulings are cited as evidence that articles which are not designed for prolonged use are not properly classified in heading 4202, HTSUS;

3. HQ 954403, dated November 16, 1993. This ruling is cited as evidence that articles which are not specially fitted or shaped to contain their contents and which may also contain other small objects are precluded from classification in heading 4202, HTSUS.

ISSUE:

What is the proper classification for the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the rules of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

Heading 3923, HTSUS, provides for, among other things, articles for the conveyance or packing of goods, of plastics. You assert in your submission that the proper classification for the subject merchandise is heading 3923, HTSUS, because it is principally used as an article for the conveyance and packing of goods. You cite a number of rulings in support of your position: NY 802585 and HQ 884585, classifying molded plastic watch boxes, NY 892740 and NY A84550, classifying compact disc and cassette cases of clear molded plastic, and HQ 087437, classifying a plastic carrying case containing a tray specially fitted to hold bobbins of embroidery thread. We have no disagreement with the fact that all of the "boxes" and "cases" in the rulings you cite were found to be articles of retail packing. The rationale for those determinations was premised on the fact that the referenced merchandise was to be used primarily as temporary packaging for the merchandise contained therein. Once the purchase was made, the containers would be discarded. No other uses, particularly of a protective nature, were attributable to that merchandise.

Heading 4202, HTSUS, 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. 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 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.

You refer to a number of rulings which classify a variety of shopping bags (HQ 953077, HQ 082831, HQ 082998) which you believe are of similar or greater construction than the subject merchandise and state that they are comparable to the subject eyewear case because they are not designed for prolonged use. You state that "shopping bags of plastic sheeting which, like the instant item, were capable of reuse but were intended for a single use (to carry purchases from the point of sale to the consumer's home) were excluded from classification within heading 4202, HTSUS". Additionally, you cite HQ 954403, wherein Customs determined that a drawstring bag designed to hold sunglasses was not properly classified within heading 4202, HTSUS, as it was not specially shaped or fitted to hold sunglasses, but could hold various articles of similar size. Although we take note of the similarities in the construction of all of the merchandise cited, we bring the notable distinctions to your attention. The cornerstone for a heading 4202, HTSUS, classification determination is the fact that the items classified therein serve the essential purpose of organizing, storing, protecting and carrying various items. All of the merchandise in the rulings you cite were determined not to provide all of those fundamental elements; the construction of the bags and the drawstring pouch, whether or not substantial, were deemed not to be protective in nature.

The subject merchandise is designed to suit the needs of the glasses it will carry . The dimensions of the bag are more than adequate to snugly accommodate eyeglasses regardless of the absence of internal fittings or compartments. The PVC construction of the case provides a sturdy and protective case to transport the glasses, thus ensuring not only the repetitive use of the subject article, but that it will also be used as a decorative and "protective packing" for the glasses it will transport. The fact that the subjective merchandise might also be used to carry and protect other small items does not detract from the obvious purpose of the subject eyewear case, that is, to carry and protect, for a prolonged or extended period of time, the initial eyeglass purchase. Customs classified merchandise similar to the submitted sample in HQ 957076, dated December 28, 1995. Therein a toiletry/cosmetic bag of clear 7.5 mil thick PVC plastic sheeting, measuring 3-1/2 inches by 4-1/2 inches by 3/4 inches and a larger bag measuring approximately 6-1/2 inches by 4-1/2 inches by 1 inch, featuring a tongue and groove slider closure, were classified in heading 4202, HTSUS. Quoting another ruling, HQ 954715, dated February 17, 1994, it was stated:
the bags have been designed for repetitive use. We note that these containers possess tongue and groove closures with metal and plastic slides that will withstand many uses. The plastic material is of a gauge sufficient to resist rips and tears.... The bags are similar to pencil cases or pouches of plastic which we have classified in heading 4202 when designed for travel.

The same holds true for the subject merchandise. The subject eyeglass case is the type of article specifically enumerated in heading 4202, HTSUS. As such, the protective, storage and organizational properties evidenced by this merchandise clearly make the case the type of article provided for under heading 4202, HTSUS.

HOLDING:

The subject merchandise is properly classified in subheading 4202.92.4500, HTSUSA, which 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: other: with outer surface of sheeting of plastic or of textile materials: travel, sports and similar bags: other. The applicable rate of duty is 20 percent ad valorem.

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 your client 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, your client 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
Tariff Classification Appeals
Division

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