CLA-2 RR:CR:TE 961294 GGD
Sidney H. Kuflik, Esquire
Lamb & Lerch
233 Broadway
New York, New York 10279
RE: Revocation of New York Ruling Letter (NY) C80418; Other Made
Up Article of Textiles; Storage Bag, Not Traveling Bag;
Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F.
Supp. 867 (1994), aff'd, 69 F.3d 495 (Fed. Cir. 1995)
Dear Mr. Kuflik:
In New York Ruling Letter (NY) C80418, issued October 20,
1997, Customs classified a large textile bag in subheading
4202.92.9025, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), textile category 670, which provides for
"Trunks...traveling bags...: Other: With outer surface of
sheeting of plastic or of textile materials: Other: Other, With
outer surface of textile materials: Other: Of man-made fibers."
We have reviewed that ruling and have found it to be in error.
Therefore, this ruling revokes NY C80418.
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 (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993),
notice of the proposed revocation of NY C80418 was published on
May 13, 1998, in the Customs Bulletin, Volume 32, Number 19.
FACTS:
The merchandise at issue is described as a storage bag or
covering for the hardtop of a BMW Z3 roadster. When laid out in
a flat manner, the article measures approximately 53 inches in
height by 58 inches in width at its widest part (and 47 inches in
width at its narrowest part). The bag is composed of 100 percent
nylon textile material with polyvinyl chloride (PVC) trim. At
the top of the bag, there is a full-width, zippered opening and a
textile webbed carrying handle. Two nonadjustable textile webbed
straps measuring approximately 38 inches in length are joined to
the bag near the top center and at the lower sides. A short,
thick loop of webbed textile material also protrudes from each of
the two lower sides. The carrying handle, straps, and loops are
primarily designed as options for suspending the hardtop from a
wall, a ceiling, etc., in a balanced manner which harms neither
the load-bearing surface nor the hardtop. The bag is not
primarily designed to carry the hardtop - which is said to weigh
approximately 85 pounds - more than very short distances.
Although the BMW Z3 roadster is a convertible, the hardtop is
offered as an optional attachment for use on the vehicle, for
instance, in colder climates on a seasonal basis. The bag is
used essentially to protect the hardtop during storage and is not
used while the hardtop is attached to the vehicle.
ISSUE:
Whether the merchandise is classified in heading 4202,
HTSUS, as a traveling bag; in heading 8708, HTSUS, as a motor
vehicle part or accessory; or in heading 6307, HTSUS, as an other
made up textile article.
LAW AND ANALYSIS:
Classification under the HTSUS 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 Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
Heading 4202, HTSUS, 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, toiletry bags,
knapsacksand 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."
In Totes, Incorporated v. United States, 18 C.I.T. 919, 865
F. Supp. 867 (1994), aff'd, 69 F.3d 495 (Fed. Cir. 1995), the
Court of International Trade (CIT) examined the classification of
automobile trunk organizers (described as bags or cases designed
to store trunk necessities such as jumper cables, tire inflator,
tools, antifreeze, oil, and other fluids, etc., in a neat and
orderly manner) and the application of ejusdem generis, to
determine whether the organizers were of the same class or kind
of containers as the listed 4202 exemplars. The Court found
significant disparity in the physical characteristics, purposes,
and uses of the individual heading 4202 exemplars, but emphasized
that the essential characteristics and purposes of all of the
exemplars were to organize, store, protect and carry various
items. The capability of the trunk organizers to carry - not to
organize, store, and protect - was a central issue in the case.
After having stipulated to the fact that the organizers had hefty
web handles for easy carrying, the plaintiff subsequently
attempted to minimize the organizers' carrying capacity and
function. The Court, however, rejected any requirement that the
principal design feature of an article classified as a "similar
container" under heading 4202 be portability or transportation of
the contents.
Like the trunk organizers, the subject textile bag is not
principally designed for the transportation of contents. The CIT
in Totes, recognized that portability is usually an incidental
purpose of jewelry boxes and certain tool chests classifiable in
heading 4202, but noted that those containers nevertheless
retained their primary uses to organize, store and protect
articles. However, unlike the trunk organizers - which featured
internal movable dividers by which a variety of items could be
compartmentalized - the subject textile bag features little in
the way of organizational characteristics. The essential
characteristics and purpose of the textile bag is to store and
protect a motor vehicle's hardtop, not to organize, store,
protect and carry various items. We find that the clear presence
of only two of the four essential characteristics of heading 4202
exemplars provides an insufficient basis upon which to classify
the textile bag as a "similar container."
Among other goods, heading 8708, HTSUS, covers parts and
accessories of motor vehicles. The EN to heading 8708 state that
the heading covers parts and accessories of the motor vehicles of
headings 8701 to 8705, provided that the parts and accessories
fulfil both of 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.
Textile bags for the storage and protection of a motor
vehicle hardtop are not excluded by the provisions of the Notes
to Section XVII. To determine whether the bag is suitable for
use solely or principally with a motor vehicle so as to be
classified as a part or accessory, we look to a discussion of the
term "part" in United States v. Willoughby Camera Stores, Inc.
(hereinafter Willoughby), 21 C.C.P.A. 322 (1933). The case
involved the classification of an imported tripod which was not
solely used with cameras and had various other purposes. The
Customs Court stated that a part "is an integral, constituent, or
component...without which the article to which it is to be
joined, could not function as such article." In United States v.
Pompeo (hereinafter Pompeo), 43 C.C.P.A. 9 (1955), the issue was
whether an imported supercharger was properly considered a part
of an automobile. The Government had argued that, because an
automobile was able to function with or without it, the
supercharger was not a part. The Court disagreed, focusing on
the nature of the supercharger, which was "dedicated irrevocably
for use upon automobiles," and held that the article was properly
classified as a part of an automobile.
The textile bag does not satisfy the requirements of a
"part" under the standards of either Willoughby or Pompeo, or
fulfil the conditions of the EN to heading 8708 for
classification as a part or accessory. The bag is never "joined"
to the BMW Z3 roadster, is not actually used upon the automobile
itself, and does not affect the vehicle's function. Since the
bag is used only after the hardtop has been detached from the
vehicle, it cannot be found to be suitable for use solely or
principally with the vehicle. The textile bag is therefore not
classified as a part or accessory of a motor vehicle. (But see
NY 873356, issued April 21, 1992, and NY 864763, issued July 8,
1991, in which an automobile trunk cover and an article
specifically designed and fitted to cover the windows and roof of
a Chevrolet Corvette automobile, respectively, were classified
under heading 8708, HTSUS. Unlike the subject textile bag,
however, each of those items was intended for attachment directly
to, and suitable for use solely or principally with, a motor
vehicle.)
Heading 6307, HTSUS, covers other made up textile articles,
including dress patterns. The EN to heading 6307 indicate that
the heading covers made up articles of any textile material which
are not included more specifically in other headings of Section
XI or elsewhere in the Nomenclature. The EN indicate that the
heading excludes travel goods (suit-cases, rucksacks, etc.),
shopping-bags, toilet-cases, etc., and all similar containers of
heading 4202. The EN also state, in pertinent part, that the
heading includes loose covers for motor-cars, domestic laundry or
shoe bags and similar articles. Loose covers for automobiles, as
well as laundry and shoe bags, share the essential purposes of
storage and/or protection. In light of this fact and the
foregoing discussion, we find that the textile storage bag is
classified in subheading 6307.90.9989, HTSUSA.
HOLDING:
The textile storage bag for the hardtop of a BMW Z3 roadster
convertible is classified in subheading 6307.90.9989, HTSUSA, the
provision for "Other made up articles, including dress patterns:
Other: Other: Other, Other: Other." The general column one duty
rate is 7 percent ad valorem.
NY C80418, issued October 20, 1997, is hereby revoked. In
accordance with 19 U.S.C. 1625(c)(1), this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C.
1625(c)(1) does not constitute a change of practice or position
in accordance with section 177.10(c)(1), Customs Regulations (19
CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division