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HQ 961173




March 21, 2001

CLA-2 RR:CR:TE 961173 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Ms. Debra Wright
Kimberly-Clark Corporation
6316 Airport Freeway
Fort Worth, Texas 76117

RE: Revocation of PD C80793; Other Made Up Article of Heading 6307; Not Holster of Heading 4202; Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff’d 69 F.3d 495 (Fed. Cir. 1995)

Dear Ms. Wright:

In Port Ruling Letter (PD) C80793, issued November 3, 1997, to Tecnol, Incorporated (which was subsequently acquired by Kimberly-Clark Corporation), a pouch made in Mexico, identified by code number 65288, and designed to hold a telemetry unit (a heart monitor/ transmitter), was classified in subheading 4202.92.9025, textile category 670, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for “Trunks...holsters and similar containers; traveling bags...: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, With outer surface of textile materials: Other: Of man-made fibers." In response to a request for reconsideration, we have reviewed PD C80793 and have found the ruling to be in error. Therefore, this ruling revokes PD C80793.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c) ), notice of the proposed revocation of PD C80793 was published on February 14, 2001, in the Customs Bulletin, Volume 35, Number 7.

FACTS:

Subsequent to the request for reconsideration, a sample described as the "Tecnol Standard Telemetry Unit Pouch" was submitted. The article, although identified by new product code number 71825 (Tecnol's product code number 65288 was changed upon Kimberly-Clark's acquisition of the company in December 1997), is said to be the same in all material respects as the pouch classified in PD C80793. The sample is a flat, open-top pouch which measures approximately 7-1/2 inches in height by 6 inches in width. Attached to the pouch are two sets of straps, one of which is designed to tie around the wearer's neck and the other of which is designed to tie around the wearer's waist. The straps and the pouch are composed entirely of nonwoven, man-made textile material which is quite flimsy. The top of the pouch has no closure and the interior is not lined. The pouch is a disposable product that is designed to hold a telemetry unit close to the body of a hospitalized patient and is not intended for reuse. The items are imported in boxes, each of which contains 15 pouches.

ISSUE:

Whether the telemetry unit pouch is properly classified under heading 4202, HTSUSA, or under heading 6307, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 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.

Pouches composed of textile materials have been classified in both headings 4202 and 6307, HTSUSA, depending upon their construction and the purpose(s) for which they are designed. Pouches classified outside of heading 4202, HTSUSA, are generally those considered not specially designed to contain particular items, and/or not adequately constructed to sustain repeated use.

Heading 4202, HTSUSA, covers “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, 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. Such articles fall in heading 4205 if made of (or covered with) leather or composition leather, and in other chapters if made of (or covered with) other materials.

The pouch at issue has no lining or padding and would appear to provide little in the way of protection for the telemetry unit. The pouch's interior has no fittings or other features designed to organize contents. The pouch is designed not for portability, but primarily to hold electronic equipment close to the body. The textile fabric is flimsy, in part, because the pouch is designed not for durability, but to hold a telemetry close to a patient's heart without creating discomfort. We note that the containers of heading 4202 are generally those designed and intended to contain items of personal property during travel. This pouch is designed to contain equipment that is normally the property of a hospital whose personnel would use the pouch to better monitor in-patient treatment. Although the telemetry unit pouch may have the character of a container, in light of the above, it is not similar to those enumerated in heading 4202.

Heading 6307, HTSUSA, covers other made up textile articles, including dress patterns. Note 1(l) to Section XI (in which heading 6307 falls) states: "This section does not cover: Articles of textile materials of heading 4201 or 4202." The EN to heading 6307 suggest that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in
the Nomenclature. The EN further indicate that the heading includes goods such as domestic laundry or shoe bags and similar articles, and that the heading excludes travel goods...and all similar containers of heading 4202. We find that the telemetry unit pouch is classified under heading 6307, specifically in subheading 6307.90.9989, HTSUSA.

HOLDING:

The article described as the "Tecnol Standard Telemetry Unit Pouch" and identified by product code number 71825 (previously code number 65288) is classified in subheading 6307.90.9989, HTSUSA, the provision for “Other made up articles, including dress patterns: Other: Other: Other, Other: Other.” The general column one duty rate is 7 percent ad valorem.

PD C80793, issued November 3, 1997, 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

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