HQ 965152

December 20, 2001

CLA-2 RR:CR:TE 965152 mbg

CATEGORY: Classification

TARIFF NO.: 4202.39.9000

Ms. Bea O'Halloran

Foreign Trade Zone Operating Company of Texas

P.O. Box 613307

Dallas, TX 75261-3307

RE: Classification of a plastic contact lens case

Dear Ms. O' Halloran:

This is in reply to your letter, on behalf of your client Fossil
Partners, dated June 20, 2001, wherein you request classification under
the Harmonized Tariff Schedule of the United States Annotated ("HTSUSA")
of a plastic contact lens case. Your request for classification was
forwarded to U.S. Customs Headquarters and upon review by the Office of
Regulations & Rulings, the classification for the subject merchandise
will be under heading 4202, HTSUSA, as a container for the reasons set
forth below.

FACTS:

The subject merchandise is a container used for the storage of contact
lenses when not is use. The merchandise is manufactured of molded
plastic and measures approximately 1 inch wide, ½ of an inch high, and 2
¼ inches long. A contact lens is intended to be stored in each side of
the container. The merchandise has two caps, labeled "L" and "R", which
screw onto the base of the container. You have stated that the lens case
will be manufactured in China.

ISSUES:

Whether the subject contact lens case of molded plastic is properly
classified in Chapter 39 as an article of plastics or in Chapter 42 as a
container under the HTSUSA?

Whether the subject contact lens case is considered an "article for the
conveyance of goods" in heading 3923, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules
of Interpretation ("GRIs"). GRI 1 provides that classification shall be
determined according to the terms of the heading 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 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]{.underline} T.D. 89-80.

Due to the plastic construction and intended purpose of the subject
merchandise, multiple tariff headings must be considered for proper
classification. The competing headings under the HTSUSA which must be
considered for classification of the subject merchandise include:
heading 3923, which provides for *inter alia*, articles for the
conveyance or packing of goods, of plastics and heading 4202, which
provides for, *inter alia,* containers.

**[I. Classification within Chapter 39, HTSUSA]{.underline}**

**[A. Heading 3923, HTSUSA]{.underline}**

Heading 3923, HTSUS, provides for articles for the conveyance or packing
of goods, of plastics; stoppers, lids, caps and other closures, of
plastics. Legal Note 2(ij), to Chapter 39 excludes from Chapter 39,
saddlery or harness (heading 4201) or trunks, suitcases, handbags or
other containers of heading 4202, HTSUS. The Explanatory Notes to the
Harmonized Commodity Description and Coding System (EN) to heading 3923
state:

> The heading excludes, *inter alia*, household articles such as
> dustbins, and cups which are used as tableware or toilet articles and
> do not have the character of containers for the packing or conveyance
> of goods, whether or not sometimes used for such purposes (heading
> 39.24), containers of heading 42.02 and flexible intermediate bulk
> containers of heading 63.05.

The articles enumerated in the EN's to heading 3923, clearly indicate
items, which by the nature of their size or use, are designated for a
commercial purpose and not for "household use". The contact lens case is
intended for personal use in order to store, transport and protect the
contact lenses when not worn by the individual. The small size of the
case, which is intended to only hold one pair of contact lenses, would
preclude any sort of "commercial" application and therefore
classification of the subject merchandise is precluded from heading
3923, HTSUSA.

In HQ 963501, dated March 23, 2000, Customs reviewed the scope of
heading 3923 and the types of articles said to be for articles for the
conveyance or packaging of goods in a commercial sense. In HQ 963501,
concerning the classification of a plastic tissue box, Customs stated:

> Customs first began to reconsider the scope of heading 3923, HTSUSA,
> by noting that the exemplars listed in the EN to heading 3923, HTSUSA,
> were used generally to convey or transport goods over long distances
> and often in large quantities. [See]{.underline} HQ 087635, dated
> October 24, 1990; HQ 951404, dated July 24, 1992; and HQ 953841, dated
> September 27, 1993. Next, Customs indicated that heading 3923, HTSUSA,
> was generally reserved for articles used for shipping purposes.
> [See]{.underline} HQ 089825, dated April 9, 1993; HQ 953275, dated
> April 26, 1993; and HQ 953458, dated April 16, 1993. In 1993, Customs
> took the position that heading 3923, HTSUSA, provided for cases and
> containers of bulk goods and commercial goods and not personal items.
> [See]{.underline} HQ 954072, dated September 2, 1993. This position
> has been consistently followed since 1993. [See]{.underline} HQ
> 954816, dated December 7, 1993; HQ 955660, dated September 27, 1994;
> HQ 955047, dated October 6, 1994; HQ 957894, dated December 14, 1995;
> HQ 957895, dated December 14, 1995; HQ 958174, dated January 31, 1996;
> HQ 959116, dated January 7, 1997; HQ 960199, dated May 15, 1997; HQ
> 960430, dated December 24, 1997; HQ 959780, dated February 17, 1998;
> HQ 959522, dated May 20, 1998; HQ 959846, dated October 28, 1998; HQ
> 961517, dated November 6, 1998; HQ 961049, dated January 5, 1999; and
> HQ 960811, dated February 3, 1999. Items such as sequined beaded waist
> bags, molded plastic carrying cases for drawing materials, molded
> plastic tote bags, molded plastic pencil cases and molded plastic
> hinged cases for computer disks have been classified outside of
> heading 3923, HTSUSA, based on findings that the articles were
> designed to carry personal effects. [See]{.underline} HQ 954816, HQ
> 957894, HQ 959116, HQ 960199 and HQ 959780 (cited above). Similarly,
> the tissue box is designed to carry personal effects and is not
> designed to carry bulk or commercial goods. Accordingly, the tissue
> box is not properly classifiable in heading 3923, HTSUSA.

In regards to the subject contact lens case, Customs reaffirms the
holding in HQ 963501, and similarly finds that the contact lens case is
not classifiable in heading 3923, HTSUSA, as it is not designed to
transport bulk or commercial goods. Customs is in the process of
reviewing prior rulings which have erroneously classified molded plastic
articles of a personal nature such as contact lens cases, pencil
holders, etc, within heading 3923, HTSUSA, and will revoke or modify any
such rulings accordingly.

**[B. Heading 3926, HTSUSA]{.underline}**

Heading 3926, HTSUSA, provides for "\[o\]ther articles of plastics and
articles of other materials of headings 3901 to 3914." The EN to heading
3926 indicate that the heading is the basket provision for plastic
articles not described more specifically elsewhere in the tariff
schedule. Customs finds that the plastic article is not classified in
heading 3926, HTSUSA, because the contact lens case, which is specially
shaped and fitted to hold contact lenses, is more specifically described
in heading 4202, HTSUSA, for the reasons set forth below.

**[II. Classification within Chapter 42, HTSUSA]{.underline}**

As previously stated, Legal Note 2 (ij) to Chapter 39, HTSUSA, provides,
"This chapter does not cover. . . trunks, suitcases, handbags or other
containers of heading 4202; ."

For application of this Legal Note, a determination must be made as to
whether the subject contact lens case is considered a "container of
4202." The articles specifically enumerated within heading 4202, HTSUSA
are "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, 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 boxes, 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 state, in pertinent part:

> 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.
>
> \[T\]he 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.
>
> The articles covered by the second part of the heading must, however,
> be only of the materials specified therein or must be wholly or mainly
> covered with such materials or with paper (the foundation may be of
> wood, metal, etc.). The expression  "similar containers" in this
> second part includes note-cases, writing-cases, pen-cases,
> ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool
> and jewellery rolls, shoe-cases, brush-cases, etc

As referenced above, heading 4202, HTSUSA, is divided into two portions.
Those articles listed before the semi-colon are not restricted as to the
material composition, whereas those articles listed in the second
portion must be constructed of the materials specifically listed in the
tariff *i.e*., 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. Application
of the ENs to the subject merchandise would preclude classification
within the second part of heading 4202 due to the molded plastic
construction which is not a material specifically named in the second
part of the heading. [See]{.underline} Headquarters Ruling Letter (HQ)
950779, dated April 1, 1992.

However, 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 and fitted. The first portion of heading 4202,
HTSUSA, 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.

However, this heading encompasses the articles enumerated, as well as
containers similar to these articles and is therefore relevant for
discussion of the subject contact lens case. Under the rule of *ejusdem
generis*, the phrase "similar articles" is limited to goods which
"possess the essential characteristics or purposes that unite the
articles enumerated *eo nomine*." [Totes, Inc. v. U.S.]{.underline}, 69
F.3d 495, 498 (Fed. Cir. 1995) (citing [Sports Graphics, Inc. v. United
States]{.underline}, 24 F.3d 1390 (Fed. Cir. 1994)).

Furthermore, in [Totes Inc., v. United States]{.underline}, 18 C.I.T.
919, 865 F. Supp. 867, 871 (1994), the Court of International Trade
concluded that the "essential characteristics and purpose of the Heading
4202 exemplars are\...to organize, store, protect and carry various
items." The Court also ruled that by virtue of *ejusdem generis* the
residual provision for "similar containers" in heading 4202, HTSUS, is
to be broadly construed. It is evident from the above referenced court
case that a broad interpretation as to the types of articles that are
classifiable as similar containers to those named in heading 4202, is
clearly supported and upheld by the Court of International Trade. The
subject contact lens case is of a kind designed to provide storage,
protection, organization and to a certain extent portability, purposes
which unite the exemplars of heading 4202, HTSUS, as confirmed in
[Totes.]{.underline}

Pursuant to the rule of *ejusdem generis*, contact lens cases have
previously been classified in heading 4202, HTSUSA, in New York Ruling
Letter ("NY") B87047, dated July 23, 1997, and NY A83640, dated June 12,
1996. However, in each of these rulings the contact lens cases under
consideration were not constructed of molded plastic. In NY B87047, the
contact cases was constructed of leather and in NY A83640, the contact
case was constructed with an outer surface of textile materials.

As the contact lens case is not one of the named exemplars, its
classification in the first portion of heading 4202, HTSUSA, depends on
its similarity to one of the named articles. The contact lens case is
not similar to the first six articles. 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.

[]{.mark}

HOLDING:

The subject contact lens case is properly classified in subheading
4202.39.9000, HTSUSA, which provides for "Trunks, . . . , spectacle
cases, binocular cases, camera cases, musical instrument cases, gun
cases, holsters and similar containers; . . . . : Articles of a kind
normally carried in the pocket or in the handbag: Other: Other." The
general column one duty rate is 20 percent *ad valorem.*

Sincerely,

John Durant, Director

> Commercial Rulings Division