Internal advice request concerning tariff classification of a leather identification holder

HQ H061119 August 6, 2010 CLA-2 OT:RR:CTF:TCM H061119 DSR CATEGORY: Classification TARIFF NO.: 4202.31.60 Area Port Director U.S. Customs and Border Protection 1624 East Seventh Avenue, Suite 101Tampa, FL 33605 RE: Internal advice request concerning tariff classification of a leather identification holder Dear Mr. McClelland: This is in response to a request for internal advice submitted on January 9, 2009, to the U.S. Customs and Border Protection (CBP) port of Jacksonville by the law offices of McGuire Woods, on behalf of Coach Services, Inc. (“Coach”). The request involves the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a leather article referred to as a “Travel Photo Frame.” The article was entered in June 2007, and CBP has classified it under 4202.31.60, HTSUS (2007), which provides for “… Articles of a kind normally carried in the pocket or in the handbag: With outer surface of leather, of composition leather or of patent leather: Other,” and dutiable at 8% ad valorem. Coach disagrees and asserts that the appropriate classification of the article is under subheading 4205.00.80, HTSUS (2007), which provides for “Other articles of leather …: Other: Other: Other,” and free of duty. FACTS: The subject article is a bi-fold designed article similar in size and configuration to a wallet or identification holder. Its outer shell consists of leather and the article measures approximately 4.25” x 3.25” x 0.37” in a closed position. The interior contains two leather outlined pockets with plastic windows, which are able to hold items such as small photos, identification cards, credit cards, or business cards. ISSUE: Whether the Travel Photo Frame is classified under subheading 4202.31.60, HTSUS, which covers, in part, articles of a kind normally carried in the pocket or in the handbag, with an outer surface of leather, or under subheading 4205.00.80, HTSUS, which covers other articles of leather. LAW AND ANALYSIS: The following HTSUS provisions are under consideration: 4202 Trunks, suitcases, vanity cases, attaché 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: * * * Articles of a kind normally carried in the pocket or in the handbag: 4202.31 With outer surface of leather, of composition leather or of patent leather: * * * 4202.31.60 Other. * * * * 4205 Other articles of leather or of composition leather: * * * Other: Other: * * * 4205.00.80 Other. * * * * Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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 based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized.  The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989). Coach asserts that the subject merchandise is a photograph frame and should be classified under heading 4205, HTSUS, as an “other” article of leather. However, heading 4205, HTSUS, is a residual or “basket” provision and such provisions are intended as “broad catch-alls to encompass the classification of articles for which there is not a more specifically applicable subheading."). EM Indus. v. United States, 22 C.I.T. 156, 999 F. Supp. 1473, 1480 n.9 (1998). Therefore, in order for the merchandise to be classified as “other articles” under heading 4205, HTSUS, it must be affirmatively excluded from classification within heading 4202, HTSUS. Heading 4202, HTSUS, provides, in relevant part, for wallets and similar containers of leather or of composition leather. EN 42.02 indicates that the heading covers only those articles specifically named, and “similar containers.” As to the broad reach of the residual provision for “similar containers” in heading 4202, HTSUS, by virtue of ejusdem generis the subject merchandise need only possess the essential character or purpose running through all of the enumerated examples contained in heading 4202, HTSUS, to be classified under that heading. Totes, Incorporated v. United States, 18 C.I.T. 919, 925, 865 F.Supp. 867, 872 (1994). The common characteristic or unifying purpose of the goods in heading 4202, HTSUS, consists of “organizing, storing, protecting and carrying various” items. See Avenues in Leather, Inc. v. United States, 317 F.3d 1399, 1402 (Fed. Cir. 2003). We first note that Coach cites pre-classification decision PC G83975, dated January 17, 2001, in which CBP classified an item identified as a “Style 8056 Leather Travel Picture Frame” as an “other article of leather” under subheading 4205.00.80, HTSUS. However, that article measured 3 ¼” x ½” x 4.1” and possessed a tab closure. The Pre-Entry Classification Program, which CBP initiated in January of 1989, was designed primarily to benefit importers whose product inventories lend themselves to an item-by-item review. Among the importers’ responsibilities for participation in the program include a complete product listing with proposed tariff classification where possible. Preclassification rulings constitute a contract between CBP and the ruling recipient only with respect to the classification of the specific articles covered in the decision. Preclassification rulings are not full-text rulings issued under the authority of Part 177, Customs Regulations (19 C.F.R. Part 177), and are not published or otherwise made available for public inspection. Accordingly, such rulings are not citable as authority in classifying merchandise of the same class or kind. For these reasons, CBP is not bound by PC G83975 with respect to the classification of the subject merchandise. Coach also states that heading 4202 is not applicable because it does not cover photo frames and, in particular, subheading 4202.31, HTSUS, covers articles of the kind normally carried in the pocket or in a handbag. See EN 42.02 and subheading 4202.31 EN. Coach presumes support for its position in CBP rulings NY N031528, dated July 17, 2008, and NY N014652, dated July 26, 2007. However, NY N031528 and NY N014652 are inapplicable to the present merchandise because the merchandise described in those rulings greatly differs from the merchandise at issue. NY N031528 involves a photo frame that is also noticeably larger than the subject article, while the merchandise of NY N014652 is larger than the subject article, possesses an arm designed to prop the frame upright for viewing, and its frame back includes a door with three metal fingers to secure photographs inside the frame. Both are photo frames, and neither article is of the type normally carried in the pocket or in a handbag. The subject article is similar to a card case or wallet and is capable of and intended to organize, store, protect and carry various articles, including, but not limited to small photographs. What is most telling is that the dimensions of its inner pockets are such that items such as a driver’s license, credit cards, and business cards can be easily carried and displayed in it. The article is referred to as a “Travel Photo Frame,” indicating that it is intended to be used for transporting its contents as opposed to an article, i.e. a photo frame, which is merely used to display its contents. Applying GRI 1 to the subject article, we find that the correct tariff classification subheading for the “Travel Photo Frame” is heading 4202, HTSUS, which covers, in part, wallets and similar articles, with outer surface of leather, normally carried in the pocket or in the handbag. HOLDING: By application of GRI 1, the “Travel Photo Frame” is classifiable under heading 4202, HTSUS – specifically under subheading 4202.31.60, HTSUS, which provides for “Trunks, suitcases, vanity cases, attaché 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: Articles of a kind normally carried in the pocket or in the handbag: With outer surface of leather, of composition leather or of patent leather: Other.” The column one, general rate of duty at the time of entry (2007) was 8% ad valorem. Sixty days from the date of the decision, the Office International Trade, 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 other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division