CLA-2 OT:RR:CTF:TCM H053756 TNA
Port Director, San Francisco Service Port
U.S. Customs and Border Protection
555 Battery Street, Room 319 San Francisco, CA 94111
Re: Application for Further Review of Protest No: 2809-08-100637; Biography Photo Album with Carrying Case.
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2809-08-100637, timely filed on November 20, 2008, on behalf of Cosmo Cricket, Inc. The AFR concerns the classification of the Biography Photo Album with carrying case, models BIO127 and BIO128, under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The product, which Cosmo Cricket markets as the “Biography Album,” consists of a photo album within a square case that has a rigid foundation. The edges of the case are surrounded by a faux leather trim. The case opens into two compartments that are held together by hinges on the bottom of the case. When the case is closed, it is secured by a metal buckle on the top of the case. In addition, the top of the case has a handle made of the same faux leather as the trim, which is used to carry the case when it is closed.
One of the case’s compartments, which features two straps with buckles, is designed to hold the photograph album that comes with the case. The two straps are made of the same faux leather trim that appears on the outside of the case. The straps can be adjusted as necessary to accommodate the photo album when it is full. The album cover is of the same material that covers the case and contains an opening for displaying a photograph. The album contains a number of plastic sheets designed to hold photographs. The other compartment of the case is empty. The two compartments are separated by a plastic divider that is bordered by the same faux leather that surrounds the outer case and the photo album. The divider is attached to the inside of the case by a set of hinges. The two types of cases are exactly the same except for their outer surfaces. The outer surface of the BIO127 model is covered with a textile composed of 54% linen and 46% cotton while the outer surface of the BIO128 model is covered with polyurethane (PU) plastic sheeting material. A sample of BIO127 model has been received and examined by this office.
On October 10, 2007, both styles of the Biography Album were entered at the San Francisco Port under subheading 4202.92.90, HTSUS. CBP liquidated the entry on August 15, 2008. The port classified style BIO128 in subheading 4202.92.9060, HTSUSA, as an “other” container, with an outer surface other than of textile materials. The port classified style B1O127 in subheading 4202.92.9036, HTSUSA, as an “other” container with an outer surface of textile material. The importer filed its protest on November 20, 2008, and claimed that the correct classification for both styles of the Biography Album is under subheading 4202.12.60, HTSUS, which provides for trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers, with an outer surface of textile materials.
ISSUE:
Is the Biography Album a “similar container” to “trunks, containers, vanity cases, attaché cases, briefcases, [and] school satchels” classified in subheading 4202.12.60, HTSUS?
Can both styles of the Biography Album be classified as having an outer surface of textile materials?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2809-08-100637 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to involve specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Specifically, the Protestant states that the initial classification decision was made based on an incorrect description of the material composition of the outer covering of the merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2008 HTSUS headings under consideration are the following:
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;…:
Trunks, suitcases, vanity cases, attache cases,
briefcases, school satchels and similar containers:
4202.12 With outer materials of plastics or of textile materials:
4202.12.20 With outer surface of plastics
With outer surface of textile materials:
Of vegetable fibers and not of pile or tufted construction:
4202.12.60 Other
Other:
4202.92 With outer surface of plastic or of textile materials:
Other:
4202.92.90 Other
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 4202 states, in pertinent part, the following:
This heading covers only the articles specifically named therein and similar containers. These containers may be rigid or with rigid foundation, or soft and without foundation. Subject to Notes 1 and 2 of 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 cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.
It is not in dispute that the case is classified under heading 4202, HTSUS, because it is used to organize, store, protect and carry the photo album and any other items the consumer wishes to place in the case. See Totes v. United States, 69 F.3d 495; 1995 U.S. App. LEXIS 29841; 17 Int’l Trade Rep. (BNA) 1929 (“the Court holds that the essential characteristics and purpose of the Heading 4202 exemplars [is] to organize, store, protect and carry various items.”)
Protestant argues that the case should be classified in subheading 4202.12.60, HTSUS, which provides for a class of containers that includes trunks, suitcases, briefcases, vanity cases and similar containers. In Totes, the court stated that “as applicable to classification cases, ejusdem generis [of the same kind] requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.” Totes, 69 F.3d. 495, 498. The Federal Circuit also affirmed the Court of International Trade’s finding that the rule of ejusdem generis requires only that the subject merchandise share the essential characteristics of the goods listed by name in the HTSUS provision. Id. at 498.
The case, although small, is similar in shape and appearance to a trunk, suitcase or briefcase, which are usually square or rectangular, have hard sides and have one or two compartments. In addition, the case has a handle, a buckle/latch, and straps which allow the consumer to pack, secure, and carry multiple items. Based on the characteristics of the case at issue, we find that it is similar to items such as trunks, suitcases and briefcases listed in subheading 4202.12.60, HTSUS.
It is also not in dispute that the photo album is a composite good classified according to its essential character. See GRI 3(b) discussion infra. CBP has previously classified photo albums with pages incorporating clear plastic overlays, similar to the ones at issue, under heading 3926 (3926.90.48), HTSUS, because their essential character was conveyed by the pages with plastic
overlays. See Headquarters Ruling Letter (HQ) H019477, dated May 6, 2008 (concerning the classification of a photo album with textile cover and pages with plastic overlay), and New York Ruling Letter (NY) N017776, dated October 25, 2007 (concerning a photo album with a bonded leather cover and pages with plastic sheeting). Similarly, in this instance, we find that the photo albums at issue are classified under heading 3926 (3926.90.48), HTSUS, because their essential character is conveyed by the pages with plastic overlays.
Thus, the merchandise consists of components that are prima facie classifiable under different headings. GRI 3(b) states that:
When, by application of Rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
…
Mixtures, composite goods consisting or different materials or made up of different components, and goods put up in sets for retail sale, 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.
Explanatory Note IX to GRI 3(b) states that:
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole, but also those with separable components, provided these components are adapted one to the other and are mutually complementary, and that together they form a whole which would not normally be offered for sale in separate parts… As a general rule, the components of these composite goods are put up in a common packing.
Our examination of the sample reveals that the dimensions of the photo album conform to those of the case. In addition, the case’s compartment has straps to secure the photo album. Moreover, the case would not likely be offered for sale without the photo album. As a result, CBP finds that the photo album and the case are adapted to each other, are mutually complementary and, therefore, fit the definition of a composite good under GRI 3(b).
EN VIII to GRI 3(b) provides:
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.
The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005). See also Conair Corp. v. United States, 29 Ct. Int’l Trade 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
In the present case, we find that the outer case, rather than the 8”x8” photo album inside it, is indispensable to the entire good. Consumers who purchase the Biography Album, rather than only a photo album, do so for the advantages of portability and extra storage space that the case brings to the entire good. The case has straps inside it with which to hold the photo album or any other article and a separate compartment to hold anything else that a consumer might want to transport along with the photo album. The buckles and handle of the case allow the consumers to easily transport the Biography Album. In addition, consumers can use the case to display items.
Lastly, Cargo Link International argues that both styles of the Biography Album should be classified under the same subheading, 4202.12.60, HTSUS, despite the fact that the outer cases of the two models are each coated with different materials. Subheading 4202.12.60 provides for cases with an outer material of textiles. Consequently, the case with outer material of plastics cannot be classified in that subheading and must be classified in subheading 4202.12.20, HTSUS which provides for containers with plastic outer materials.
HOLDING:
By application of GRI 3(b), the Biography Album with outer surface of polyurethane (PU) plastic sheeting material, Style BIO128, is classified in heading 4202, HTSUS, specifically under subheading 4202.12.20, HTSUS, which provides for: “Trunks, suitcases, vanity cases,… and similar containers: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or of textile materials: With outer surface of plastics.” The 2008 column one, general rate of duty is 20% ad valorem. The Biography Album and carrying case with outer surface of 54% linen, 46% cotton, style BIO127, is classified in heading 4202, HTSUS, specifically in subheading 4202.12.60, HTSUS, which provides for: “Trunks, suitcases, vanity cases… similar containers: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or of textile materials: with outer surface of textile materials: Of vegetable fibers and not of pile or tufted construction: Other.” The 2008 column one, general rate of duty is 5.7% ad valorem. Items classified under subheading 4202.12.60, HTSUS (2008) fall within textile category 870.
You are instructed to deny the protest, except to the extent that reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
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