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HQ 963473




March 22, 2002

CLA-2 RR:CR:TE 963473 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9060

Mr. Michael McKenna
Expeditors Tradewin, LLC
1015 Third Avenue, 12th Floor
Seattle, Washington 98104

RE: Reconsideration of NY E83337; "Console Organizer;" Insulated Bag for Various Personal Effects; Not Insulated Food or Beverage Bag

Dear Mr. McKenna:

This is in response to your request dated October 15, 1999, on behalf of your client, Case Logic, Incorporated, for reconsideration of New York Ruling Letter (NY) E83337, dated June 24, 1999, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of merchandise consisting of an insulated bag made in China, the Philippines, or Indonesia. A sample was submitted with your original request. We regret the delay in responding.

FACTS:

In NY E83337, the article described as a "console organizer," and identified as model ACC-10, was classified in subheading 4202.92.9060, HTSUSA, which provides, in pertinent part, for "Trunks...camera cases...and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, Other: Other." The article at issue is a bag designed for use in an automobile as an organizer of various personal effects including food and/or beverages. The main body of the bag consists of panels of material constructed in three layers, the outermost of which is composed of embossed, compact polyvinyl chloride (PVC) plastic sheeting that is backed with a woven, man-made textile material. The middle layer consists of foam plastic material which measures approximately 3/8 of an inch in thickness. The innermost layer is composed of PVC plastic sheeting. After the panels are stitched
together and the interior seams are heat-sealed, the bag's central compartment is said to be watertight and intended to contain food or beverages. The bag's lid has a zippered closure which extends along three sides. The exterior side panels each have textile mesh pockets that are designed to hold two canned beverages. The remaining exterior sides and top are fitted with an array of pockets, flaps, and holders (composed of mesh textile fabric or plastic sheeting material) which are designed to contain items such as maps, a cell phone, flashlight, pen, pad, and/or various other items that a motorist may find convenient. In addition to stating that the insulated main storage compartment keeps food and drinks cold or hot, marketing literature for model ACC-10 says that the console organizer fits on the floor or between the seats, that it has hook attachment strips on the bottom to secure the organizer in place, that the four tri-fold drink holders snap flat when not in use, and that additional pockets provide storage for "maps, CDs, electronic accessories and more."

ISSUE:

Whether the console organizer is classified under heading 4202, HTSUSA, as a container used to organize, store, protect and carry various personal effects; or under heading 6307 or heading 4202, as an insulated bag for food or beverages.

LAW AND ANALYSIS:

Classification under the 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 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Heading 4202, HTSUSA, currently 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 [not a named exemplar at the time of your request], 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.

You essentially contend that the console organizer is an insulated bag for food or beverages, whose classification is governed by the decision in SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997). The case concerned the classification of portable, soft-sided, insulated cooler bags with outer surface of plastics (not backed with textile fabric). In SGI, the Court of Appeals for the Federal Circuit (CAFC) held that the appropriate classification for the bags at bar was not under heading 4202, but in subheading 3924.10.5000, HTSUSA, noting that the provision encompassed exemplars (such as salt, pepper, mustard, and ketchup dispensers) that were ejusdem generis with the coolers because their purpose was to contain food and beverages.

This office concluded that the CAFC’s decision in SGI should be implemented and issued instructions to that effect on November 7, 1997, March 18, 1998, and September 10, 1998. The principles of the SGI decision were expressly extended to insulated containers with outer surfaces composed in whole or in part of textile materials (the latter of which were classifiable under heading 6307), and to such articles that featured exterior or interior pockets, webbing, straps, etc., provided that the additional features did not alter the container’s primary purpose to store and preserve food and/or beverages. (See, e.g., Headquarters Ruling Letter (HQ) 963602, dated October 18, 1999.)

We note that, pursuant to Presidential Proclamation 7515 of December 18, 2001, effective January 10, 2002, the term “insulated food or beverage bags” was included in the text of heading 4202, HTS. A new eighth paragraph in the EN to heading 4202 (page 661) explains that "[t]he expression 'insulated food or beverage bags' covers reusable insulated bags used to maintain the temperature of foods and beverages during transport or temporary storage." Therefore, insulated bags and similar containers used for such purposes, entered on or after January 10, 2002, are classifiable under heading 4202. Newly created subheadings 4202.92.05 and 4202.92.10, HTSUSA, provide specifically for "Insulated food or beverage bags" ("With outer surface of textile materials" and with outer surface of "Other" materials, respectively).

You cite to numerous rulings in which insulated food or beverage bags are classified under heading 6307, HTSUSA, and assert that such rulings should control the classification of the console organizer. The changes to heading 4202 noted above, however, stem from actions taken by the International Trade Commission (ITC), beginning with the institution of Investigation No. 1205-5 on November 18, 1999, which proposed changes to the HTS due to the work of the World Customs Organization

(WCO) and Harmonized System Committee (HSC) to update and clarify tariff nomenclature. The ITC actions culminated with the amendment of the HTSUS to provide eo nomine for "insulated food or beverage bags" in new tariff breakouts. Since the publication and issuance requirements of 19 U.S.C. 1625 do not apply when a position is modified, revoked or otherwise materially affected by operation of law (in this case, the amendment of the HTSUS by the ITC), Customs rulings in which insulated food or beverage bags, or similar containers, are classified in headings other than 4202 (e.g., headings 6307, 3924, 3926, etc.), will not be revoked or modified by publication of notices in the Customs Bulletin. Effective January 10, 2002, all such rulings inconsistent with the intent of the amendments to heading 4202 and its statutory provisions, were revoked or modified by operation of law.

As is the case here, however, insulated containers that are used to carry various personal effects in addition to food or beverages may be classified in other provisions under heading 4202, HTSUSA. We find that numerous features of the console organizer indicate that the container's primary purpose is not to store and preserve food and/or beverages, but to organize, store, protect and carry a variety of personal effects intended to make motor travel more convenient and comfortable. The insulated central compartment is a feature which is available to carry food and/or beverages, but which on most occasions is likely to contain personal effects other than food or beverages. Even the rare user who would operate a vehicle only when food or beverages are stored within reach would recognize that the insulated compartment of the console organizer is only one facet of the complete article. In its entirety, the console organizer is dedicated to organizing, storing, protecting and carrying a wider array of items.

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 organizers which were designed to store, in an orderly manner, necessities that are normally carried in an automobile's trunk. Applying the rule of ejusdem generis, the Court determined that the organizers were of the same class or kind of containers as the listed 4202 exemplars. Although finding significant disparity in the physical characteristics, purposes, and uses of the individual exemplars, the CIT emphasized that the essential characteristics and purposes of all of the exemplars were to organize, store, protect and carry various items. Since the capability of the trunk organizers to carry was a central issue in the case, the plaintiff 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 of contents, and recognized that portability is often only an incidental purpose of jewelry boxes and certain tool chests, while those containers still retained their primary uses to organize, store and protect articles.

Like the Totes trunk organizers, the console organizer is not principally designed to be carried, but the fact that it is designed to fit on the floor or 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. The fact that the bag is also able to store and preserve food or beverages is secondary to its primary purpose. Whether or not the insulated compartment is used, on occasion, to contain and maintain the temperature of food or beverages, the remaining pockets, flaps, and holders are continually available to organize, store, and protect items other than, or in addition to, food or beverages. When food or beverages are not being stored in the insulated compartment, the space is available for other items. (See HQ 964444, dated December 18, 2001, in which this office classified several articles which incorporated insulated compartments designed to store and dispense beverages. The articles were classified as backpacks - not as insulated food or beverage bags - based on each article's design and ability to organize, store, protect and carry various personal effects in addition to beverages.) In this case, we find that the features and characteristics of the console organizer bear substantial similarity to specially fitted, insulated bags for camera accessories. Therefore, the article is properly classified in subheading 4202.92.9060, HTSUSA. (See also NY E89953, dated December 1, 1999.)

HOLDING:

NY E83337, dated June 24, 1999, is hereby affirmed.

The article described as a "console organizer" and identified as model ACC-10, is classified in subheading 4202.92.9060, HTSUSA, which provides, in pertinent part, for "Trunks...camera cases...and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, Other: Other." The general column one duty rate is 18.1 percent ad valorem.

Sincerely,


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