Reconsideration of New York Ruling Letter N031300; classification of game cartridge cases

HQ H045866 May 29, 2009 CLA-2 OT:RR:CTF:TCM H045866 CkG CATEGORY: Classification TARIFF NO.: 4202.99.9000 Jay Fox BDA, Inc. 15525 Woodinville Redmond RD NE Woodinville, WA 98072 RE: Reconsideration of New York Ruling Letter N031300; classification of game cartridge cases Dear Mr. Fox: This is in response to your letter of October 7, 2008, requesting the reconsideration of New York Ruling Letter NY N031300, dated July 17, 2008. NY N031300 classified the subject game cartridge containers as plastic containers of heading 4202, HTSUS. In your request for reconsideration, you claim that the articles should have been classified in heading 3923, as articles for the conveyance or packing of goods. For the reasons set forth below, we affirm the decision in NY N031300. FACTS: The subject articles are molded plastic cases for Nintendo DS cartridges, identified as item number 061235-80. The cases are specially shaped and fitted to contain two cartridges. Each case measures approximately 1.5” (W) x 2.75” (L) x .5” (D) and features two storage compartments and a flip-top opening. ISSUE: Whether the subject game cartridge cases are classifiable as cases and containers of Heading 4202, HTSUS, or in Chapter 39 as articles for the conveyance or packing of goods or other articles of plastic. LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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). The HTSUS provisions under consideration are as follows: 3923: Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: 3923.10.0000: Boxes, cases, crates and similar articles * * * * * 3926: Other articles of plastics and articles of other materials of headings 3901 to 3914: 3926.90.99: Other . 3926.90.9980: Other * * * * * 4202: 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: Other: 4202.99: Other: 4202.99.9000: Other * * * * * 9504: Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof: 9504.90: Other: 9504.90.4000: Game machines, other than those operated by coins, banknotes (paper currency), discs or similar articles; parts and accessories thereof * * * * * In addition to the terms of the headings, classification of goods under the HTSUS is governed by any applicable section or chapter notes. Chapter 39, Legal Note 2(m) provides as follows: This chapter does not cover… Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202. Note 1(d) to Chapter 95 provides: “This chapter does not cover…Sports bags or other containers of heading 4202, 4303 or 4304.” EN 42.02 provides: This heading covers only the articles specifically named therein and similar containers…These containers may be rigid or with a rigid foundation, or soft and without foundation…Subject to Notes 1 and 2 to this Chapter, the articles covered by the first part of the heading may be of any material. The expression " similar containers " in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc. Classification within heading 3923 is subject to Chapter 39, Legal Note 2(m), which excludes from Chapter 39 goods that are classifiable in heading 4202. Goods of Heading 4202 are similarly excluded from Chapter 95 by virtue of Chapter Note 1(d). Therefore, as long as the goods are described in heading 4202, they are precluded from classification in any of the provisions of Chapters 39 or 95, even if they are described therein. We must therefore first address whether the subject articles are described in Heading 4202, HTSUS. Since goods in the first part of the heading may be of any material, classification may be proper if the merchandise is determined to be specifically shaped or fitted and of a kind similar to the named exemplars. In this case, the subject cases are specifically designed and fitted to contain two Nintendo DS game cartridges. The first portion of heading 4202, HTSUS, specifically lists trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers. Although the subject case is not one of the named exemplars, heading 4202 encompasses the enumerated articles, as well as containers similar to these articles. As referenced above, heading 4202, HTSUS, is divided into two portions. Those articles in the first part of the heading may be constructed of any material, whereas those articles listed in the second portion must be constructed of leather or composition leather, of sheeting of plastics, of textile material, of vulcanized fiber, or of paperboard, or wholly or mainly covered with such materials or with paper. Classification of the subject merchandise within the second part of heading 4202 is precluded due to the molded plastic construction which is not a material specifically named in the second part of the heading. For the subject merchandise to be classified in heading 4202, HTSUS, we must therefore find that it falls within the scope of the first part of the heading. Cartridge cases are not specifically enumerated in heading 4202, but the EN does single out “cartridge pouches” as an example of a container similar to those enumerated in the heading itself, and therefore classifiable in heading 4202. The EN does not define the term “cartridge pouch.” Prior Customs and Border Protection decisions have identified individual holders for shotgun and paintgun shells of textile materials as cartridge pouches, and classified them in heading 4202, HTSUS. See NY G87427, dated March 7, 2001; NY M81809, dated April 20, 2006. The instant articles are not similar to the cartridge pouches previously classified in heading 4202. Therefore, in order to classify the subject goods as "similar" under heading 4202, HTSUS, 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 classifying goods under the residual provision of "similar containers" of heading 4202, HTSUSA, the Court of International Trade has 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.” Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff’d. 69 F. 3d 495 (Fed. Cir. 1995). The court 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." Totes 865 F. Supp. at 872. The subject cases are specially shaped and internally fitted to store, organize and protect individual game cartridges. However, they lack features specially designed for transport; they are small in dimension and lack straps or handles, and are thus more easily transported in a larger container or bag. The Totes court held, however, that it is not a requirement for classification by ejusdem generis as "similar containers" under Heading 4202 that the principal design feature of the merchandise be portability or transportation of the contents. Citing DRI Industries v. United States, 11 C.I.T. 97, 657 F. Supp. 528 (1987), the CIT further noted that “no such express design for carrying requirement exists in Heading 4202.” Totes 865 F. Supp. at 873. The important question at issue is whether or not the merchandise has characteristics in common with the enumerated articles.  While the subject cases may be lacking features specialized for transport, other articles enumerated in heading 4202, HTSUS are designed primarily for storage and protection of a single item, such as spectacle cases, camera cases, binocular and gun cases. Spectacle cases, in particular, do not typically have straps or clips that would indicate they are designed with transport in mind. Instead, they are typically carried in a larger handbag or briefcase. The individual exemplars listed in Heading 4202 are therefore, as noted by the CIT in Totes, clearly “disparate in their physical characteristics, purposes and uses,” Totes 865 F. Supp. at 872. Moreover, articles of a similar size and character as the instant cases have been classified in heading 4202 before. For example, HQ 965152, dated December 20, 2001, classified a plastic contact lens case in heading 4202, while noting as follows: “The contact lens case is not similar to the first six articles [of Heading 4202]. The first six articles are generally large articles, often hand-carried by means of an attached handle and used to carry items other than smaller items normally carried in the pocket or handbag. The contact lens case is small and designed to carry only one pair of contact lenses with one lens placed in each compartment. Therefore, the contact lens case is somewhat similar to the remaining six articles in the first part of the heading. These six containers are made to carry one specific article (although some may also accommodate small accessories or parts like a lens cap or cleaning rod), and are often form-fitted to the particular item to be carried. Accordingly, we find that the contact lens case is classifiable as a specially shaped or fitted container in the first part of heading 4202, HTSUSA.” A razor case was similarly found to fall within Heading 4202, HTSUS, in HQ W968151, dated March 21, 2007. A comparison may also be made between the instant articles and the plastic cosmetic case classified in heading 3923 by HQ H083974, dated June 12, 1989. The reasoning in that case does not apply to the instant articles; as noted above, articles ejusdem generis to the items enumerated in the first part of heading 4202 can be composed of any material. An article which is made directly from a mass of plastic and not a “sheet” or “sheeting” of plastic is thus classifiable as a good of heading 4202 if it possesses the essential characteristics or purposes shared by the items enumerated in the first part of heading 4202, HTSUS. The subject merchandise shares the same essential character and purpose other containers specified or otherwise classified in Heading 4202. We therefore conclude that the instant articles are classifiable within the first half of heading 4202, HTSUS. The instant articles are thus described in heading 4202, HTSUS. By application of Chapter 39, Legal Note 2(m) and Note 1(d) to Chapter 95, they are therefore precluded from classification in any of the provisions of Chapters 39 or 95, even if they are described therein. HOLDING: By application of GRI 1, the game cartridge containers are classified in heading 4202, HTSUS, and are specifically provided for in subheading 4202.99.1000, 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, 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: Other: Other: Of plastics.” The 2009 column one, general rate of duty is 20% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N031300, dated July 17, 2008, is hereby affirmed. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division