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HQ 965456




May 22, 2002

CLA-2 RR:CR:TE 965456 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9026

Barbara Y. Wierbicki, Esq.
Thompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Classification of Beach Chair Organizer; Similar Container of Heading 4202, HTSUSA; Not Heading 6307, HTSUSA.

Dear Ms. Wierbicki:

This is in reply to your letter dated January 23, 2002, on behalf of Accessory Network Group, Inc., requesting that Customs classify under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) a “beach chair organizer.”

FACTS:

The article under consideration is described as a “beach chair organizer.” Two samples were submitted. The samples are nearly identical except that one has a removable shoulder strap and the other has no shoulder strap. The marketing materials depict two different styles, DP-3869 and PH-2069. The organizer is composed of man-made fiber textile fabric which is coated on the interior with compact plastics. The organizer resembles a handbag in its construction. It measures approximately 12 inches in width, 1¼ inch in depth and 9 inches in height. The interior consists of one main compartment. The top portion of the interior contains a one-inch collar that would help prevent articles from falling out of the organizer. The exterior front of the bag features a zippered flat pocket that is nearly the same width as the bag. Overlying this pocket is a pouch to hold a bottle or can, a mesh pocket (also for holding a beverage container) and a small clear plastic flat pocket. Attached to the top portion of the back of the organizer are three straps of textile webbing with snap closures that form loops enabling the organizer to be attached to the back or arm of a beach chair or to the handle of a stroller. You have requested that Customs classify the organizer with and without the removable shoulder strap.

ISSUE:

Whether the “beach chair organizer” is classifiable under heading 4202, HTSUSA, as a “similar container,” or under heading 6307, HTSUSA, as an other made-up textile article?

LAW AND ANALYSIS:

Classification of imported merchandise under the Harmonized Tariff Schedule of the United States is made in accordance with the General Rules of Interpretation (GRI’s). 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’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings). The EN’s facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI’s. While not legally binding, the EN’s represent the considered views of classification experts of the Harmonized System Committee. It has, therefore, been the practice of the Customs Service to follow the terms of the EN’s, when appropriate, when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

You argue that the beach chair organizer is properly classified in heading 6307, HTSUSA, which provides, in pertinent part, for other made-up textile articles. You contend that the organizer is not similar to the containers enumerated in heading 4202, HTSUSA, and, therefore, heading 6307, HTSUSA, is the appropriate heading in which to classify the organizer.

Heading 4202 provides for:

Trunks, suitcases, vanity cases, attaché 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.

The EN to heading 4202, HTSUSA, state, in part, that “This heading covers only the articles specifically named . . . and similar containers.” Under the rule of ejusdem generis, where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. With respect to the broad reach of the residual provision for “similar containers” in heading 4202, HTSUSA, the courts have found that the rule of ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated in order to be classified under the general term. Totes, Inc. v. United States, 18 Ct. Int’l Trade 919, 865 F. Supp. 867, 871 (1994), aff’d, 69 F.3d 495 (1995).

In Totes, the Court of International Trade found that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” The instant beach chair organizers have the same essential characteristics, i.e., to organize, store, protect and carry items, as the containers listed in heading 4202, HTSUSA. The headercard submitted with the sample states that the organizer has:

Large open pocket for magazines or books
Velcro Closure

“Velcro Closure” is the terminology used on the headercard. There is no trademark designation to verify whether any hook and loop closure mechanism is produced by Velcro™, particularly since the samples provided do not have a hook and loop closure. There is sufficient room at the top of the organizer to attach a hook and loop closure, but it is not clear whether the article, at the time of importation, will have a hook and loop closure. Mesh pocket for water bottle or can softdrink Removable shoulder strap in inside pocket Zipper pocket for money/keys, etc
Open pocket for suntan lotion
Tinted window for beach pass

The bag is clearly designed with features that are ideal for carrying, storing and organizing personal items that one usually takes to the beach. The fact that one model of the organizer may not have a shoulder strap does not disqualify it as a container of heading 4202, HTSUSA. The organizer still retains the characteristics of a container. Accordingly, applying the rationale set forth in Totes, the organizers come under the “similar container” language of heading 4202, HTSUSA.

The beach chair organizer is similar to the “ladder caddy” which was classified in HQ 960968, dated November 30, 2000. In that case Customs considered a textile container designed to hold tools and accessories in various pockets. The article could be rolled up like a tool roll. When unrolled it was used with a ladder by placing it over the top rung or step making the tools easily accessible. Customs concluded that the ladder caddy was “ejusdem generis or ‘of the same kind’ of merchandise as tool bags listed in heading 4202.” In making this determination Customs noted that the “ladder caddy” was similar to tool rolls that are referred to in the EN’s.

You attempt to distinguish Customs findings in HQ 960968 from the instant case, by stating that the “‘ladder caddy’ . . . was found to be properly classifiable within Heading 4202, HTS, based on being specifically enumerated as one of the “similar containers” in the ENs.” This misstates Customs position in HQ 960968. Customs specifically stated that the ladder caddy is similar to tool rolls which are listed as similar containers in the EN. Customs did not find that the ladder caddy is a tool roll, as implicated by your statement. Instead, Customs found that the ladder caddy was ejusdem generis with the tool bags listed in heading 4202, HTSUSA.

You assert that the beach chair organizer is classified in subheading 6307.90.9989, HTSUSA (effective January 2002, the provision is annotated as 6307.90.9889, HTSUSA), which provides for “Other made up articles, including dress patterns: Other: Other: Other, Other: Other.” The EN to heading 6307, HTSUSA, state, in part, that:

This 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.

In part, the EN to heading 6307, HTSUSA, also state that the heading excludes "Travel goods (suit-cases, rucksacks, etc.), shopping-bags, toilet-cases, etc., and all similar containers of heading 42.02.” Given that the beach chair organizer is a “similar container” of heading 4202, HTSUSA, and is more specifically provided for elsewhere in the nomenclature, classification in heading 6307, HTSUSA, is not appropriate. Similarly, in Totes the Court held that the trunk organizer under consideration was not classifiable in subheading 6307.90.9986 because it was specifically provided for under heading 4202, as a similar container and was therefore excluded from classification under heading 6307 by the Explanatory Notes. Totes, at 874.

You cite Totes for the well established proposition that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” You then rely on HQ 964193, dated April 9, 2001, wherein Customs ruled that a travel document holder was not a travel bag of heading 4202, HTSUSA. You state that “Customs found that the ‘Organizer’ serves the purposes of organizing, storing, protecting and carrying the various documents that are typically carried during travel.” (Emphasis in original). You then conclude that the beach chair organizer, detachable strap notwithstanding, is not intended for use during travel and, therefore, is not classifiable in heading 4202, HTSUSA. In making this argument you infer that in order to be classified in heading 4202, HTSUSA, an article must be intended for use during travel. This is incorrect. The issue in HQ 964193 was whether the travel document holder was a travel bag (i.e., one classifiable in a provision for “Travel, sports and similar bags”) or an “Other” bag. Relying on Additional U.S. Note 1 to Chapter 42, HTSUSA, Customs concluded that the document holder was not a “Travel” bag, even though it was used during travel, because it did not have the generic capacity to carry clothing and personal items. The instant article has similar features to a travel bag in that it has a generic carrying capacity to hold and carry personal items and is designed to be used on excursions to the beach, as evidenced by the tinted beach pass window.

The fact that the beach chair organizer may or may not be imported with a shoulder strap is not determinative of whether the article is classified in heading 4202, HTSUSA. In Totes, the Court of International Trade held 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.” Id. 865 F. Supp. at 873. In discussing portability, the Court analogized the purpose of the trunk organizer to other items classified in heading 4202, such as jewelry boxes, stating that the precise purpose of jewelry boxes is to organize, store and protect articles, and only incidentally, if at all, to transport the contents. See Id. at 873. The Court noted that while the trunk organizer is designed to be carried, there is no such carrying requirement for heading 4202. Id. The Court summarized its reasoning as follows: “The short of the matter is: whether the carrying feature or organized storage feature of the container is the primary or secondary use is simply not a material issue in their classification under heading 4202.” Id. See also HQ 089182, dated January 21, 1992 (noting that similar containers listed in the second half of heading 4202 provide, among other things, storage and/or protection and/or portability).

You state that the beach chair organizer is similar to arm chair organizers that were classified in heading 6307, HTSUSA. See New York Ruling Letters (NY) E81484, dated May 17, 1999, and NY F88293, dated June 30, 2000. In NY E81484, the article under consideration was described as:

. . . an arm chair organizer. . . . It consists of two pieces, one which is a holder for magazines and a television remote. The other piece is a protective cover for the arm of a chair in matching fabric. The holder . . . is designed to be draped over the arm of a chair or couch. It features three open pockets at one end and sewn into the other end are pellets to add weight so that the holder does not slip off the arm of the chair. . . .

In NY F88293 the article was described as follows:

The sample submitted is a “Northwoods Moose TV Corduroy Organizer. . . . It consists of two components which are permanently attached. One component is a flat textile panel with pockets designed to hold small magazines and a remote control. The other component is a stuffed toy-like figure of textile material made to resemble a humorous moose. It is weighted with pellets. The figure is designed to lie on its stomach. The textile panel is designed to hang from the weighted figure when the figure is placed on the arm of a chair.

The beach chair organizers are distinguishable from the arm chair organizers in several aspects. The beach chair organizer is designed to be transported on excursions to the beach or the pool. Thus, even though portability is not determinative, mobility and carrying of items is a common characteristic of the containers of heading 4202, HTSUSA. Secondly, the beach chair organizer, with its large central pocket, zippered security pocket and pockets for additional personal items, is more akin to a handbag or travel bag than is the arm chair organizers. Finally, the arm chair organizers are more similar to furniture accessories than to containers of heading 4202, HTSUSA.

With respect to classification of the beach chair organizer at the subheading level, the beach chair organizer has characteristics similar to a travel bag, a hand bag and an organizer. Like the trunk organizer of Totes, however, the beach chair organizer is classified in the “Other” provision, i.e., subheading 4202.92.9026, HTSUSA, which provides, in pertinent part, for “[t]runks, suitcasesand similar containers; travel bags, toiletry bagsand similar containersof textile materials: 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.”

HOLDING:

The beach chair organizers, styles DP-3869 and PH-2069, are classified in subheading 4202.92.9026, HTSUSA, textile category 670, which provides, in pertinent part, for “[t]runks, suitcasesand similar containers; traveling bags . . . toiletry bagstool bagsand similar containersof textile materials: 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.” The general column one rate of duty is 18.1 percent, ad valorem. There are no applicable quota/visa requirements for the products of World Trade Organization ("WTO") members. The textile category number above applies to merchandise produced in non-WTO countries

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of Customs and you should resubmit a request for a new ruling in accordance with 19 CFR 177.2. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by the Customs Service.

Sincerely,

John Durant, Director

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