CLA-2 OT:RR:CTF:TCM HQ H092277 TNA
Ms. Rosemary Dumond
Near North Customs Brokers, Inc.
20 Elliot Avenue
Barrie, Ontario L4N4V7
RE: Revocation of NY K84392 and NY J86790; Classification of a Trunk/Cab Organizer from China
Dear Ms. Dumond:
This letter is in reference to New York Ruling Letter (“NY”) K84392, issued to you on behalf of P&P China Automotive on March 25, 2004, and NY J86790, issued to Pacific Century Customs Service on July 24, 2003 concerning the tariff classification of a Trunk/Cab Organizer. In those rulings, U.S. Customs and Border Protection (“CBP”) classified the Trunk/Cab Organizers under subheading 8708.29.50, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Parts and accessories of motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other…: Other.” We have reviewed NY K84392 and NY J86790 and found them to be in error. For the reasons set forth below, we hereby revoke NY K84392 and NY J86790.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY K84392 and NY J86790 was published on August 24, 2011, in Volume 45, Number 35, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
The subject merchandise consists of five models of trunk organizers, model numbers 5083, 80210, 4205, and 5772; and Style Number TOH-4022-HA. Model numbers 5083, 80210, 4205, and 5772 are made to order and cut to size, and are imported to be shipped to companies such as General Motors, Ford, BMW, Volkswagen, and Dura Automotive. They are made of vinyl and felt and are shaped to fit into the trunk of a car. They contain interiors that have pouches sewn into them, but these pouches are not specifically shaped or fitted to carry any kind of tool. The merchandise contains straps and hook-and-eye closures, but does not have exterior handles of any kind. Overall, these organizers are designed to remain in the trunk of a vehicle.
Style Number TOH-4022-HA is made of microfiber and is an open top storage trunk insert for SUV’s, trucks, cars, mobile homes, etc. The item is used to store auto accessories and other items. There are three additional pockets for storage with flaps that are secured with hook-and-loop fasteners. The size is approximately 16"Lx11"Wx4"H when closed and can be expanded to 16"x23"x4". There is no lid, closure or handles on the item. The item is not a container or a case. It is similar to an open box. While the submitted sample was made of microfiber, the merchandise can be made of other textile materials in the future.
In NY K84392, dated March 25, 2004, and NY J86790, dated July 24, 2003, CBP classified the Trunk/Cab Organizers under subheading 8708.29.50, HTSUS, as: “Parts and accessories of motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other…: Other.
ISSUE:
Whether trunk/cab organizers made of microfiber, felt and vinyl are classified in heading 4202, HTSUS, as containers, or under heading 8708, HTSUS, as parts or accessories of motor vehicles?
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 headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The HTSUS provisions under consideration are as follows:
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:
4202.92 With outer surface of sheeting of plastic or of textile materials:
Other:
4202.92.90 Other
* * * * * * * * * * * *
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Other parts and accessories of bodies (including cabs):
8708.29 Other:
8708.29.50 Other
Additional U.S. Rule of Interpretation 1(c) states, in relevant part:
In the absence of special language or context which otherwise requires-
(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such a part or accessory;
Note 3 to Section XVII reads, in pertinent part:
3. References in Chapters 86 to 88 to “parts” or “accessories” do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part or accessory.
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).
EN (III)(C)(4) to Section XVII, HTSUS, states, in pertinent part:
(C) Parts and accessories covered more specifically elsewhere in the Nomenclature.
Parts and accessories, even if identifiable as for the articles of this Section, are excluded if they are covered more specifically by another heading elsewhere in the Nomenclature, e.g.:…
(4) Tool bags of leather or of composition leather, of vulcanised fibre, etc. (heading 42.02).
The EN for heading 4202, HTSUS, states, 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.
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.
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.). For this purpose the expression “of leather or of composition leather” includes, inter alia, patent leather, patent laminated leather and metallised leather. 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….
The heading does not cover:…
(f) Tool boxes or cases, not specially shaped or internally fitted to contain particular tools with or without their accessories (generally, heading 39.26 or 73.26).
The EN for heading 8708 states, in pertinent part:
This heading covers parts and accessories of the motor vehicles of headings 87.01 to 87.05, provided the parts and accessories fulfil both the following conditions:
(i) They must be identifiable as being suitable for use solely or principally with the above mentioned vehicles;
and (ii) They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note).
In NY K84392 and NY J86790, CBP classified the subject merchandise under heading 8708, HTSUS, as other parts and accessories of motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs). In accordance with Additional U.S. Rule of Interpretation 1(c), and as illustrated by EN (III)(C)(4) to Section XVII, HTSUS, however, if the trunk organizer is classifiable in heading 4202, HTSUS, it cannot be classified in heading 8708, HTSUS.
Inasmuch as trunk organizers are not named in heading 4202, HTSUS, we must determine whether the subject trunk organizer is a similar container to those listed there. “In order to classify the subject goods as ‘similar’ under 4202, we must look to factors which would identify the merchandise as being ejusdem generis (of a similar kind) to those specified in the provision.” See HQ 964318, dated October 11, 2001. In Totes, Inc. v. United States, 69 F.3d 495 (Fed. Cir. 1995), affirming Totes, Inc. v. United States, 18 C.I.T. 919; 865 F. Supp. 867, 16 Int’l Trade Rep. (BNA) 2283; 1994 Ct. Intl. Trade LEXIS 180 (Ct. Int’l Trade 1994), the Federal Circuit stated that “as applicable to classification cases, ejusdem generis 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.
In Totes, the Federal Circuit 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 eo nomine in 4202, and that these characteristics were those of “organizing, storing, protecting, and carrying various items.” Id. In fact, the merchandise that was at issue in Totes was one style of the company’s trunk organizer. See Totes, Inc. v. United States, 18 C.I.T. 919; 865 F. Supp. 867, 16 Int’l Trade Rep. (BNA) 2283; 1994 Ct. Intl. Trade LEXIS 180 (Ct. Int’l Trade 1994). At trial, Plaintiff argued that the merchandise should be classified under heading 8708, HTSUS, as car accessories, or under heading 6307, HTUS, as “Other” made up articles of textiles. The court addressed these arguments and overruled them, affirming CBP’s classification of the merchandise under Heading 4202, HTSUS. Id. at 928. In doing so, the court noted that:
whether portability of the import is a primary or ancillary feature, is not legally controlling in its classification as ‘similar containers’ under Heading 4202. Thus, even assuming that the trunk organizer's portability or design for carrying is ancillary to its storage purpose, the trunk organizers are nonetheless ejusdem generis with the exemplar containers in Heading 4202 - precisely the purpose of jewelry boxes that are used primarily to organize, store and protect articles, and only incidentally (if at all) to transport the contents. Id. at 926.
Prior CBP rulings have adhered to this standard, classifying products similar to the subject merchandise under heading 4202, HTSUS, regardless of whether the items have handles. See, e.g., HQ 963473, dated March 22, 2002 (“like the Totes organizers, the console organizer is not principally designed to be carried, but the fact that it is designed to fit on the floor between the seats (with hook attachment strips to secure it in place) indicates that the container is suitable to effectively transport various items in a vehicle, while it organizes, stores, and protects them.”); NY L81831, dated January 11, 2005; NY L80488, dated November 8, 2004 (classifying a trunk organizer under subheading 4202.92.90, HTSUS); NY I87171, dated October 11, 2002 (classifying “Bed Baskets” organizer bags designed for use in the trunk of a car under subheading 4202.92.90, HTSUS); and HQ 086884, dated August 13, 1990 (classifying another model of Totes’ trunk organizers under subheading 4202.92.90, HTSUS.)
Furthermore, the fact that the subject merchandise does not possess handles for carrying does not exclude it from heading 4202, HTSUS. In HQ 956140, dated October 29, 1994, we stated that “to the extent that portability is a requirement, articles classifiable in heading 4202 need not be primarily designed for this purpose. Thus, the fact that the tool cases may primarily be used to store their contents does not remove them from the scope of the heading. Similarly, the fact that the cases may more easily be carried if a handle were present is not dispositive. Rather, to satisfy the portability requirement it is sufficient if, in terms of their design, it is reasonable and foreseeable that the articles may be used to transport their contents…. there is no absolute requirement that these containers possess handles (e.g. a spectacle case, which is enumerated in the first part of the heading, does not ordinarily possess handles).” See also HQ H064875, dated January 4, 2010.
In the present case, the subject merchandise is intended to be used to store various tools in the trunk of a car, both for the convenience of the owner and to keep these items from shifting during travel. There can be little doubt that the merchandise is “suitable to effectively transport various items in a vehicle, while it organizes, stores, and protects them.” See HQ 963473.
The subject merchandise is also distinguishable from NY L81789, dated January 14, 2005; and NY L81790, dated January 15, 2005. The items at issue in these rulings are referred to as “collapsible storage bins/baskets.” As such, they are not substantially similar to the instant merchandise. They are not designed for use in the trunk of a car. They contain no pockets or means of protection for the items placed inside them. They contain no lid or closure, and, though, they incorporate a single handle, it could not be used to transport the contents of the bin. As a result, they could not be used to transport, organize, or protect items that are kept in them. The subject merchandise, by contrast, contains internal pouches that can be used to organize various items, and closures to protect the items. Furthermore, the subject merchandise was created for transporting items inside a vehicle. As a result, CBP finds that the subject merchandise meets the Totes standard of ejusdem generis with the merchandise listed in heading 4202, HTSUS, and can be classified under that heading. Furthermore, the items in NY L81789 and NY L81790 were designed to be collapsible or foldable when not in use, whereas the subject merchandise is more substantial. Thus, in accordance with the terms of Additional U.S. Rule of Interpretation 1(c) and the relevant ENs, because the trunk organizer is classifiable in heading 4202, HTSUS, it cannot be classified in heading 8708, HTSUS.
Hence, CBP finds that the subject trunk/cab organizers are classified under subheading 4202.92.90, HTSUS, 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: With outer surface of sheeting of plastic or of textile materials: Other: Other.”
HOLDING:
Under the authority of GRI 1, the subject trunk/cab organizers are provided for in subheading 4202.92.90, HTSUS, 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: With outer surface of sheeting of plastic or of textile materials: Other: Other.” The general, column one, duty rate is 17.6% 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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY K84392, dated March 25, 2004, and NY J86790, dated July 24, 2003, are REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division