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HQ 964616




August 21, 2001

CLA-2 RR:CR:TE 964616 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9060

Ms. Ellen L. Federman
Soller, Shayne & Horne
65 Franklin Street
Boston, MA 02110

RE: Revocation of HQ 958048, dated November 6, 1996; Classification of a Carrying Case for a Blood Glucose Monitoring System; Diabetes; Heading 4202, HTSUSA; Binocular Cases, Camera Cases, Musical Instrument Cases and Similar Containers.

Dear Ms. Federman:

This letter is to inform you that Customs has reconsidered Headquarters Ruling Letter (HQ) 958048, issued to you on behalf of your client MediSense, Inc., on November 6, 1996, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of carrying cases for blood glucose testing kits. After review of that ruling, it has been determined that the classification of the carrying cases in subheading 4202.32.1000, HTSUSA, was incorrect. For the reasons that follow, this ruling revokes HQ 958048.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 958048 was published on July 11, 2001, in the Customs Bulletin, Volume 35, Number 28. One comment was submitted in response to the notice.

FACTS:

The carrying cases that are the subject of this revocation were reclassified at entry in subheading 4202.92.9040, HTSUSA (now 4202.92.9060, HTSUSA), the provision for "Trunks, suitcases, vanity cases... and similar containers; traveling bags, toiletry bags... and similar containers...: Other: With outer surface of sheeting of plastic...: Other: Other, Other." The importer contested this classification, contending that the proper classification for the carrying cases is under subheading 4202.32.1000, HTSUSA, the provision for "Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: With outer surface of sheeting of plastic: Of reinforced or laminated plastics." Customs agreed with the protestant and issued HQ 958048.

In HQ 958048, the carrying cases were described as follows:

Each of the two available sample cases is substantially identical in appearance to the other, except for the fact that one is labeled "Made in China" and the other is labeled "Made in Belgium." The articles are tri-fold in design and have snap closures. When folded/closed, the items measure approximately 5-3/4 inches in width by 3-1/4 inches in height by 1/2 inch in depth.

The outer surface of the case marked "Made in Belgium" is composed of embossed cellular polyvinyl chloride (PVC) plastic, one side of which has been applied to a layer of nonwoven textile fabric. The case marked "Made in China" has a layered structure, the outer layer of which is composed of embossed non-cellular polyurethane plastic. The second layer consists of a cellular PVC plastic. The third layer is an adhesive which bonds the fourth layer, a nonwoven textile fabric, to the cellular plastic second layer. The textile material in both cases, is present for purposes of reinforcement.

The cases are intended for post importation use as carrying cases for diabetes (blood glucose) testing kits. The interior sections of each case contain two clear plastic compartments to hold test strips and a sensor, vinyl slots for lancets, and an elasticized loop to hold a lancing device in place. Information on retail packaging states, in part, that the case (with contents) is "Compact - fits in pocket or purse. Convenient - test practically anywhere, anytime.

ISSUE:

Are the carrying cases for blood glucose monitoring kits properly classified under subheading 4202.32, HTSUSA, as an article of a kind normally carried in the pocket or in the handbag, or under subheading 4202.92.90, as an “other” container or case?

LAW AND ANALYSIS:

Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.

The carrying cases are classified in heading 4202, 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.

At the subheading level, the articles were classified in HQ 958948 under subheading 4202.32, HTSUSA, as articles of a kind normally carried in the pocket or in the handbag. However, the carrying cases are not similar to the exemplars listed in the EN for subheading 4202.32, HTSUSA, such as wallets, key-cases and cigarette cases. Although they are of a size similar to the goods of subheading 4202.32, HTSUSA, Customs finds that their characteristics and functions are similar to other specialty cases such as musical instrument cases, camera cases, binocular cases and compact disk cases which are classified under subheading 4202.92, HTSUSA. Accordingly, Customs finds that the carrying cases are classified under subheading 4202.92.9060, HTSUSA, which provides, in part, for “Trunks, suitcases spectacle cases, binocular cases, camera cases . . . : Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, Other: Other.” See, HQ 962132, dated October 26, 2000. See also, Port Decision (PD) 88022, dated June 4, 1998;

HOLDING:

The carrying cases for the blood glucose monitoring kits are classifiable under subheading 4202.92.9060, HTSUSA. The general column one duty rate is 18.6% 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 renegotiations and changes, to obtain the most current information available, we suggest 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 importation of this merchandise to determine the current status of any import restraints or requirements.

In order to ensure uniformity in Customs' classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), HQ 958048 is revoked.

In San Francisco Newspaper Printing Co. v. United States, 9 C.I.T. 517, 620 F. Supp. 738 (1985), the Court of International Trade held that Customs is not authorized to rescind a denial of a protest. Therefore, we cannot reconsider our position with respect to the entries at issue in HQ 958048. However, with respect to future importations of the subject merchandise, HQ 958048 will no longer control the classification.

EFFECT ON OTHER RULINGS:

HQ 958048, issued on November 6, 1996, 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
Commercial Rulings Division


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