CLA-2 RR:CR:TE 964393 ASM

Eli J Mamiye, VP
Innovative Products Int’l, Inc.
Plaza 34, Suite U
1070 State Route 34
Matawan, NJ 07747

RE: Request for reconsideration and Revocation of NY F88775: Classification of Textile Storage/Protector Pouches

Dear Mr. Mamiye:

This is in response to your letter, dated July 17, 2000, requesting reconsideration of Customs New York Ruling (NY) F88775, dated July 13, 2000, regarding the classification of a textile storage/protector pouch under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed this ruling and determined that the classification provided for this merchandise is incorrect. This ruling revokes NY F88775 by providing the correct classification for the subject merchandise. A sample was submitted to this office for examination.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY F88775 was published on May 23, 20001, in the Customs Bulletin, Volume 35, Number 21. No comments were received in response to this notice.

FACTS:

The subject merchandise is identified as the “Intercept Protector” pouch and is manufactured with an exterior surface of textile man-made material. It is our understanding that the pouches will be imported in various sizes ranging from approximately 3 inches x 5 inches to 14 inches x 14.5 inches. The opening of the pouch has extra length, which folds over one time and is secured by a hook and loop fastener. The interior contains a copper color lining of plastic sheeting with a black mesh overlay. The packaging states that the pouch is a protector for: cameras, binoculars, electronic flashes, computers, digital and electronic equipment, audio/video products, radio, “Walkman”, disc-man, mini-disc, photos, palm held devices, photos, film material, and any other product subject to corrosion. According to the packaging, the “Intercept Protector” has been designed to react with and neutralize corrosive atmospheric gases thereby ensuring a longer life for the protected product.

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In New York Ruling Letter (NY) F88775, dated July 13, 2000, the subject item was classified in subheading 4202.92.3031, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for travel, sports and similar bags, with outer surface of textile materials, other, of man-made-fibers, other. The corresponding textile quota category is 670. You disagree with this classification and claim that the “Intercept Protector” storage pouch has been designed exclusively for long term storage. You further note that the product is “specifically suited to store and protect the contents from long term corrosion.” Finally, you note that the lack of a handle precludes ease of transport, portability, and organization of contents.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 4202, HTSUSA, specifically covers various cases and containers, and provides as follows:

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.

The EN to heading 4202 indicates that the heading covers only the articles specifically named and similar containers. While this type of protector pouch is not specifically named in heading 4202, HTSUSA, the subject pouch is similar to the “binocular cases” and “camera cases” specified in heading 4202, in that it is designed to contain and protect binoculars and cameras and various electronic equipment .

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According to the EN, the expression “similar containers” in the first part (prior to the semi-colon) includes camera accessory cases that may be of a rigid or soft foundation. The subject “Intercept Protector” pouch is a soft foundation container, which is designed to contain cameras, electronic flashes, film cartridges and various other electronic equipment. However, in order to classify the subject goods as “similar” under heading 4202, HTSUSA, we must look to additional factors, which would identify the merchandise as being ejusdem generis (of a similar kind) to those specified in the provision.

In the case of Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867(1994), aff’d. 69 F. 3d 495 (1992), the Court of Appeals stated as follows:

As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.

In classifying goods under the residual provision of “similar containers” of heading 4202, HTSUSA, the Court of Appeals affirmed the trial court’s decision and found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, HTSUSA., i.e., “…to organize, store, protect and carry various items.”

Clearly, the “Intercept Protector” pouch has been designed to store and protect various electronic items. The packaging provides two pictures which detail the results of a 10 year test where a camera was placed in the “Intercept Protector” pouch (no visible corrosion) as compared to one that was not in an “Intercept Protector” pouch (visible corrosion). Pursuant to the Totes case (supra) the subject pouches are classifiable under heading 4202, HTSUSA, because they share with the containers listed eo nomine, the essential characteristics of organizing, storing, and protecting their contents. Although you have asserted that the pouches are precluded from classification under heading 4202, HTSUSA, because they are designed for protective long term storage, it is our opinion that this fact provides additional evidence that the pouches share the characteristics enumerated in Totes. The “Intercept Protector” pouches provide a means of organizing and storing various electronic equipment and protecting the items from corrosion for an extended period of time. Furthermore, the pouches come in various sizes thus facilitating their usefulness in the long term storage and organization of electronic equipment including a camera and such accessories as a flash component, film cartridges, batteries, fuses, etc.

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Headquarters Ruling (HQ) 954438, dated November 5, 1993, involved a container made of plastic sheeting material designed to provide a protective cover for a wood moisture meter when not in use. In this ruling, it was determined that the item was a “similar container” to certain cases listed eo nomine under heading 4202, HTSUSA, and was classifiable under the provision because it was specially shaped or fitted to hold a particular article and provided protective storage for the article contained therein. Thus, HQ 954438 provides additional support for classification of the subject merchandise as a “similar container” under heading 4202, HTSUSA, because the “Intercept Protector” is also a soft foundation container which has been designed to provide protective storage. Although containers that are “specially shaped or fitted” are usually intended to organize, store, protect, or carry their contents, this is not one of the enumerated criteria of Totes (supra). Thus, the fact that the “Intercept Protector” is not “specially shaped or fitted” doesn’t exclude the article from classification under heading 4202, HTSUSA, as a “similar container.” The cases of Totes (supra) and Jewelpak Corp. (supra) have broadened the scope of “similar containers” classifiable under heading 4202, HTSUSA, in that classification under the provision only requires that the article share one or more of the characteristics of the containers listed eo nomine, i.e., organizing, storing, protecting or carrying various items. Evidence of the pouch’s anti-corrosive properties demonstrates its suitability for the storage and protection of electronic equipment, including camera equipment.

In view of the foregoing, we have determined that the “Intercept Protector” pouch is not necessarily a generic “traveling bag” and that NY F88775, dated July 13, 2000, should not have classified the merchandise under subheading 4202.92.3031, HTSUSA, which provides for: travel, sports and similar bags, with outer surface of textile materials, other, of man-made-fibers, other. Rather, it is similar to the eo nomine goods, “camera cases” and “binocular cases” and is properly classified as an “other” bag in subheading 4202.92.90, HTSUSA.

HOLDING:

NY F88775, dated July 13, 2000, is hereby revoked.

The subject merchandise is correctly classified in subheading 4202.92.9026, 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, 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: Other: Other, With outer surface of textile materials: Other: Of man-made fibers.” The general column one rate of duty is 18.6 percent ad valorem. The quota category is 670.

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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 that 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 applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division