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HQ 965622




November 1, 2002

CLA-2 RR:CR:TE 965622

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

John B. Pellegrini, Esq.
Ross & Hardies
65 East 55 Street
New York, New York 10022-3219

RE: Revocation of New York Ruling Letter (NY) H88291; Rifle Sock: Other Made Up Article of Textiles; Storage Bag, Not Traveling Bag; Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff'd, 69 F.3d 495 (Fed. Cir. 1995); Not Rifle Part or Accessory of Heading 9305

Dear Mr. Pellegrini:

This letter is in response to your letter dated March 6, 2002, in which you request reconsideration of New York Ruling Letter (NY) H88291, issued March 5, 2002, in which Customs classified a rifle sock, style number 886428 in subheading 4202.92.6091, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "Trunks...gun cases, holsters and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Other: Of cotton: Other." We have reviewed that ruling and have found it to be in error. Therefore, this ruling revokes NY H88291.

FACTS:

The merchandise at issue is described as a rifle sock of textile materials. The merchandise is a tubular knit sheath approximately 55 inches in length and 4 inches in width. The fabric is a 55/45-cotton/polyester blend. One end is closed and the other has a rib-knit cuff with a drawstring closure. We are advised that the article is used to protect a rifle or shotgun from dust, dirt, moisture and scratches when not in use. The bag is not primarily designed to carry the rifle or shotgun.

It is claimed that the correct classification is as a rifle accessory in subheading 9305.29.5000, HTSUSA.

ISSUE:

Whether the merchandise is classified in heading 4202, HTSUS, as a gun case; in heading 9305, HTSUS, as a gun part or accessory; or in heading 6307, HTSUS, as an other made up textile article.

LAW AND ANALYSIS:

Classification under the HTSUS 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 Harmonized System at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

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, insulated food or beverage 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 order to warrant classification under heading 4202, HTSUSA, the rifle sock must be found to share the fundamental characteristics attributable to containers of heading 4202, HTSUSA. 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 (CIT) examined the classification of automobile trunk organizers (described as bags or cases designed to store trunk necessities such as jumper cables, tire inflator, tools, antifreeze, oil, and other fluids, etc., in a neat and orderly manner) and the application of ejusdem generis, to determine whether the organizers were of the same class or kind of containers as the listed 4202 exemplars. The Court found significant disparity in the physical characteristics, purposes, and uses of the individual heading 4202 exemplars, but emphasized that the essential characteristics and purposes of all of the exemplars were to organize, store, protect and carry various items. The capability of the trunk organizers to carry - not to organize, store, and protect - was a central issue in the case. After having stipulated to the fact that the organizers had hefty web handles for easy carrying, the plaintiff subsequently attempted to minimize the organizers’ carrying capacity and function. The Court, however, rejected any requirement that the principal design feature of an article classified as a “similar container” under heading 4202 be portability or transportation of the contents.

Like the trunk organizers, the subject textile rifle sock is not principally designed for the transportation of contents. The CIT in Totes, recognized that portability is usually an incidental purpose of jewelry boxes and certain tool chests classifiable in heading 4202, but noted that those containers nevertheless retained their primary uses to organize, store and protect articles. However, unlike the trunk organizers - which featured internal movable dividers by which a variety of items could be compartmentalized - the subject textile rile sock features little in the way of organizational characteristics. The essential characteristics and purpose of the textile rifle sock is to store and protect a rifle or shotgun, not to organize, store, protect and carry various items.

Among other goods, heading 9305, HTSUS, covers parts and accessories of shotguns and rifles of heading 9303. The EN to heading 9305 state parts and accessories of the heading includes "(3) [p]rotective covers and protective cases, for butts, sights, barrels or breeches.

You argue that the rifle sock is similar to the protective covers and protective cases for butts, sights, barrels or breeches provided for in heading 9305, HTSUS. We do not agree.

We note that when a tariff provision or EN lists a number of items and is followed by a general word or phrase, like the use of the phrase "similar containers," the rule of statutory construction called ejusdem generis applies. See Avenues in Leather; Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999). Imported merchandise falls within the general phrase if it possesses the essential characteristics or purposes uniting the listed exemplars and does not have a more specific primary purpose that is inconsistent with the listed exemplars. In the instant case the EN to heading 9305 state parts and accessories of the heading includes "(3) [p]rotective covers and protective cases, for butts, sights, barrels or breeches. The phrase "similar items" is not used. Therefore a protective cover for a rifle is not consistent with listed examples of covers. In addition we note that butts, sights, barrels and breeches are specific parts, but not the only parts, of the articles of headings 9301 to 9304. Each of these articles makes the rifle usable or widens its range of usefulness. However, only the protective covers and protective cases for butts, sights, barrels or breeches are included as parts and accessories of the heading. It is also our view that the heading is limited to protective covers for parts of the articles of 9301 to 9304 and not for covers for the articles (rifles or shotguns) themselves. We note additionally that the EN to heading 9305 states that
the heading excludes gun cases (heading 42.02). Accordingly, protective covers for the rifle (the rifle sock) are not included in this heading.

Heading 6307, HTSUS, provides for other made up articles of textile materials. The Explanatory Notes for this heading state that the heading covers made up articles of any textile material that are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. The EN indicate that the heading excludes travel goods (suit-cases, rucksacks, etc.), shopping- bags, toilet-cases, etc., and all similar containers of heading 4202. The EN also state, in pertinent parts, that the heading includes loose covers for motor-cars, machines, suitcases, tennis rackets, etc.; domestic laundry or shoe bags and similar articles; garment bags other than travel garment bags; and tea cosy covers. The essential purposes of the exemplars listed in the EN are storage and/or protection. We note that the gun would be put into the rifle sock before being stored in the display case or safe in one's home. This rifle sock helps to protect the gun from scratches, as well as helping absorb any moisture in the air to prevent the rifle from rusting. The gun would be transferred to a rifle case before traveling. The rifle sock shares the essential purposes of storage and/or protection. In light of this fact and the foregoing discussion, we find that the textile rifle sock is classified in subheading 6307.90.9889, HTSUSA.

HOLDING:

The textile rifle sock is classified in subheading 6307.90.9889, 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.

NY H88291, issued March 5, 2002, is hereby revoked.

Sincerely,


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