Application for Further Review of Protest No. 4601-13-102094; classification of trunk organizer and cooler bag

HQ H254337 October 31, 2017 CLA-2 OT:RR:CTF:CPM H254337 CkG CATEGORY: Classification TARIFF NO: 4202.92.90 Port Director U.S. Customs and Border Protection Protest & Control 1100 Raymond Blvd., Ste. 402 Newark, NJ 07102 ATTN: John Marturano, Import Specialist Re: Application for Further Review of Protest No. 4601-13-102094; classification of trunk organizer and cooler bag Dear Port Director, This is in reply to the Application for Further Review (AFR) of Protest No. 4601-13-102094, dated December 20, 2013, on behalf of Jewelite (HK) LTD (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of one entry of a trunk organizer and cooler bag in subheading 4202.92.90, HTSUS. The instant merchandise was entered on September 20, 2013, in heading 6307, HTSUS, as an “other” made up textile article. The entry was liquidated on December 06, 2013, in subheading 4202.92.90, HTSUS, as an “other” bag with an outer surface of sheeting of plastic or of textile materials. Protestant now claims classification in heading 4202, HTSUS, specifically subheading 4202.92.10, HTSUS, as an insulated food or beverage bag. FACTS: The EZ Trunk Organizer & Cooler Deluxe consists of a collapsible trunk organizer with a removable insulated cooler bag. It is advertised for use in the automobile, to store, organize and transport personal effects, groceries, and the like. The trunk organizer has two handles, is constructed of polyester and measures 17” x 12” x 14”, with three internal compartments measuring 12.5” x 7.5” x 9.4” each. The cooler bag measures 12.5” x 7” x 8”. ISSUE: Whether the EZ Trunk Organizer & Cooler is classified in subheading 4202.92.10, HTSUS, as an insulated food or beverage bag with an outer surface of sheeting of plastics or of textile materials, or in subheading 4202.92.90, HTSUS, an “other” bag with an outer surface of sheeting of plastics or of textile materials. LAW AND ANALYSIS: CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed within 180 days of liquidation of the entries. See 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 Number 4601-13-102094 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise; specifically, New York Ruling Letter (NY) H87094, dated January 22, 2002. Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).  GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. 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 order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 3 states, in pertinent part: When by application of [GRI] 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components . . . 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. The 2013 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 plastics or of textile materials: Insulated food or beverage bags: With outer surface of textile materials: 4202.92.10: Other.... Other: 4202.92.90: Other… * * * * The EN to GRI 3(b) provides, in pertinent part, as follows: (VIII) 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. (IX)   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.   Examples of the latter category of goods are :   (1)     Ashtrays consisting of a stand incorporating a removable ash bowl.   (2)     Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.   As a general rule, the components of these composite goods are put up in a common packing. * * * * We first note that we agree with the Protestant and the Port that heading 6307, HTSUS, is not the correct classification of the trunk organizer and cooler bag. Heading 6307, HTSUS, is a residual or “basket” provision, intended as a broad “catch all” to encompass articles for which there is not a more specifically applicable heading.  See EM Industries v. United States, 999 F. Supp. 1473 (Ct. Int’l Trade 1998). Thus, we must exclude the subject merchandise from other headings before we can classify it in heading 6307, HTSUS. Both trunk organizers and insulated cooler bags are provided for in heading 4202, HTSUS. Insulated food and beverage bags with an outer surface of other than textile materials are provided for eo nomine under subheading 4202.92.10, HTSUS. Trunk organizers are not specifically named in heading 4202, HTSUS; however, CBP has classified trunk organizers as “similar” containers to traveling bags, tool bags, sports bags, etc. in heading 4202, HTSUS. Pursuant to Totes, Inc. v. United States, 69 F.3d 495 (Fed. Cir. 1995), under the rule of ejusdem generis, “similar containers” to those listed eo nomine in heading 4202 are those which share the essential characteristics of "organizing, storing, protecting, and carrying various items." Trunk organizers are ejusdem generis (of a similar kind) to containers of heading 4202 because they organize, store and protect their contents, and thus are classified in heading 4202, HTSUS. Under the 2013 HTSUS, trunk organizers are provided for in subheading 4202.92.90, HTSUS, when constructed with an outer surface of (man-made) textile materials. See, e.g., HQ H092277, dated April 23, 2012; HQ H064875, dated January 4, 2010; HQ 963473, dated March 22, 2002; HQ 086884, dated August 13, 1990; NY N271698, January 22, 2016; NY N261624, dated February 27, 2015; NY N250960, dated March 27, 2014; NY N053837, dated March 30, 2009; NY L81831, dated January 11, 2005; NY L80488, dated November 8, 2004; NY J89156, dated September 24, 2003; and NY I87171, dated October 11, 2002. Together, the trunk organizer and the cooler bag form a composite good; although the two components are separable, they are mutually complementary and are packaged, sold, and intended to be used together for the purpose of storing and transporting food or beverages and a variety of other goods in the car. Neither component is well suited for sale as separate parts; the lack of reinforcement of the trunk organizer and the lack of handles on the cooler bag make each container unwieldy to carry when full, so both bags are likely to mostly stay in the car. The cooler bag is also designed to fit inside the larger trunk organizer. As a composite article, the trunk organizer and cooler bag is not classifiable in either subheading 4202.92.10 or 4202.92.90 at GRI 1. We therefore turn to GRI 3. Subheadings 4202.92.10 and 4202.92.90 each describe only part of the trunk organizer and cooler bag combination; therefore, neither subheading is more specific for the purposes of GRI 3(a). We therefore turn to GRI 3(b). Pursuant to GRI 3(b), composite goods are classified as if they consisted entirely of the material or component which gives them their essential character. EN VIII to GRI 3(b) explains that "[t]he 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 the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the each material or component in relation to the use of the goods. See Structural Industries, 360 F. Supp. 2d 1330 (Ct. Int’l Trade 2005); Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). 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 at 1336. Between the trunk organizer and the cooler bag, the trunk organizer predominates in bulk, quantity and weight, and also plays the most important role in the ultimate use of the good—i.e., to store, protect, and organize goods. The trunk organizer can be used for the long-term storage of objects which a driver might have need of, such as maps, flashlights, blankets, tools, first aid kit, etc. The cooler bag, on the other hand, is designed only for the temporary storage and transportation of food and beverages, making it an optional add-on to be used on an as-needed basis. Thus, the trunk organizer is the component that is most likely to prompt the consumer to purchase the article. As such, the essential character of the composite good is imparted by the trunk organizer. Accordingly, the EZ Trunk organizer & Cooler bag is classified in subheading 4202.92.90, HTSUS. Protestant cites to NY H87094, dated January 22, 2002, in support of its claimed classification in subheading 4202.92.10, HTSUS. However, NY H87094 concerned only the classification of an insulated cooler bag, not a trunk organizer or a composite good such as the instant merchandise. NY H87094 is therefore not applicable to the classification of the EZ Trunk Organizer & Cooler. Rather, protestant should have relied on NY N250960, dated March 27, 2014, classifying a substantially similar trunk organizer and insulated cooler bag in subheading 4202.92.90, HTSUS (2014). HOLDING: By application of GRIs 1, 3 and 6, the EZ Trunk Organizer & Cooler are classified in heading 4202, HTSUS, specifically 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 2013, column one, general rate of duty is 17.6% ad valorem. You are instructed to deny the protest in full. 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 Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public online at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division