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HQ 967445




December 28, 2004

CLA-2: RR:CR:TE: 967445 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Port Director
Customs & Border Protection
Port of New York/Newark c/o Jennifer Tagliaferro
Protest and Control
1100 Raymond Blvd.
Suite 402
Newark, NJ 07102

RE: Decision on Application for Further Review of Protest No. 4601-04-101375; the tariff classification of “3-ring Binder Carryalls.”

Dear Port Director:

This is a decision on the Application for Further Review (“AFR”) of Protest Number 4601-04-101375, timely filed by International Tariff Management, Inc., on behalf of Walgreen’s (“protestant”), concerning the classification of a two models of “3-ring Binder Carryalls” (pencil pouches with pockets).

FACTS:

The pencil pouches are known as the “WIC 814617” and the “WIC 802136.” Both are made in China. We were not provided with samples of the cases, only a photocopied photo of the WIC 814617.

Based on the photo and protestant’s description of the models in its Memorandum in Support of Protest (“memorandum”), it appears the models each have two compartments, a main compartment and a smaller PVC (plastic) mesh compartment on top of the main compartment. It appears that both compartments close with a nylon zipper. The main compartment of the WIC 814617 is made of polyester, while the main compartment of the WIC 802136 is made of nylon. It also appears that each model has three metal grommets, or eyelets, spaced across its bottom which enables it to be carried in a standard loose-leaf 3-ring binder.

The photocopy shows that the WIC 814617 measures approximately 6 inches wide by 3.75 inches tall. As we do not have a sample or photo of the WIC 802136, we are not certain of its measurements. Based on your description of the model, however, it appears to be smaller than the WIC 814617, with its main compartment sized to hold computer disks.

One shipment of the WIC 814617 and the WIC 802136 was entered through the Port of New York/Newark on April 29, 2003 with the articles classified under subheading 6307.90.9889, which provides for: “Other made up articles : Other: Other, Other.”

Further review of Protest Number 4601-04-101375 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.

Protestant asserts that the WIC 814617 and the WIC 802136 are classifiable under subheading 8308.10.0000, HTSUSA, which provides for, among other items, “eyelets,” because the articles are composite goods without essential character that must be classified pursuant to GRI 3(c). According to protestant, heading 8308 (which covers, among other items, eyelets) is the heading which occurs last in numerical order among those which equally merit consideration for classification of the articles.

ISSUE:

Are the WIC 814617 and the WIC 802136 classified under heading 6307, HTSUSA, as “Other made up articles” or under heading 8308, HTSUSA, as eyelets?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that 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, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Upon review, it is determined that no single heading within the HTSUSA specifically describes goods of this type. Because the merchandise cannot be classified pursuant to GRI 1, we apply the remaining GRIs in their appropriate order. GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings. GRI 3(a) states, in pertinent part, that:

.... when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods ... those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

We next look to GRI 3(b), which in pertinent part states:

... composite goods consisting of different materials or made up of different components ... which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The fact that the WIC 814617 and the WIC 802136 constitute composite goods is not at issue, only the component which imparts their essential character. Explanatory Note VIII to GRI 3(b) provides guidance which may aid in determining the essential character of a composite good. The EN states the following:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

Information regarding several of the factors named in the above EN is not available. There is sufficient evidence, however, for our determination to be based on the nature of the material and components and their role in relation to the use of the articles.

Petitioner asserts that because each of the components of the WIC 814617 and the WIC 802136 is functionally equivalent, the models are without essential character and, therefore, must be classified pursuant to GRI 3(c). That rule states:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

We disagree that the components are functionally equivalent. While we agree that each component serves an important purpose in the overall construction and use of the articles, it is the textile fabric of each model that creates its primary storage compartments, or pockets. Storage of items associated with the use of a 3-ring binder is the principal, if not the sole purpose of the WIC 814617 and the WIC 802136. In light of this, we find that the textile fabrics provide the composite goods with their essential character and that the models are classified in subheading 6307.90.9889, HTSUSA, the subheading in which the models were classified on the protested entries. We have consistently classified similar pencil cases of textile fabric that were designed to be carried in a loose-leaf ring binder as other made up [textile] articles. See, for example, New York Ruling Letter (NY) H86411, dated December 26, 2001, NY J81710, dated March 24, 2003, NY F86535, dated May 9, 2000, NY C86141, dated April 7, 1998, and NY C83407, dated January 29, 1998.

We note that if the WIC 814617 and the WIC 802136 were classified pursuant to GRI 3(c), the heading occurring last in numerical order among those which equally merited consideration would be heading 9607, HTSUSA, the heading which would cover the nylon zipper in each of the models.

HOLDING:

The WIC 814617 and the WIC 802136 are classified in subheading 6307.90.9889, which provides for: “Other made up articles : Other: Other: Other, Other: Other.”

The Protest should be DENIED. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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