February 10, 2010 CBP Bulletin Notice on Classification of Certain Driver Organizers
In the February 10, 2010 issue of the U.S. Customs and Border Protection Bulletin (Vol. 44, No. 7), CBP published a notice proposing to modify two rulings, and revoke one ruling and a treatment as follows:
Proposed modification and revocation of rulings; proposed revocation of treatment. CBP is proposing to modify two rulings and revoke one ruling on the classification of certain driver organizers. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.
CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed modification and revocations, or any party involved with a substantially identical transaction, should advise CBP by March 12, 2010, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.
Driver organizers. The merchandise at issue in NY 813199 is described as an auto visor wallet composed of vinyl designed to be attached to a sun visor in an automobile by means of two elastic straps that are sewn across the back of the article. The item is solely or principally used in an automobile. The visor has a large zippered pocket and two small open pockets on the front exterior designed to hold maps, receipts, registration certificates, toll booklets and other miscellaneous items.
The merchandise at issue in NY F80907 is described as a "Catch-All Organizer". The primary function of the product is to hold small items within reach of the front seat passengers in a vehicle. The holder is a single compartment attached with a snap to a bendable wire covered in nylon webbing. The product is designed so that the bendable wire is inserted into the gaps in the air vents or wrapped around/attached to another surface in the vehicle. The main body is made of nylon, some of which is backed with PU foam. The compartment lining is nylex. There are decorative trimmings using leather, PVC, and nylon.
The merchandise in NY R04768 is described as an "Auto Wallet" which is an auto document organizer chiefly used to contain articles such as an auto insurance card, driver's license, registration and other small identification papers. It is made of nylon material with vinyl windows. It is primarily designed to be affixed to an automobile visor, but can also fit into a glove compartment
CBP is proposing to issue HQ H075358, HQ H075360, and HQ H075361 in order to modify NY 813199 and NY F80907, and revoke NY R04768, and reclassify the driver organizers under HTS 4202.92.90 as wallets, purses, cases and similar containers rather than under HTS 8708.29.50 as parts and accessories of automobiles.
CBP proposes this change as a correction based on Section XVII, Note 3 and the Explanatory Notes (ENs) to 8708. Note 3 states that references 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 (chapters 86 - 88). The EN to 87.08 further clarifies that heading 8708 will only cover accessories to motor vehicles of headings 8701 to 8705 if they are suitable for use solely or principally with such motor vehicles.
In NY 813199 and NY F80907, CBP found the visor wallet and auto wallet were suitable for use principally with a motor vehicle, because the articles were primarily designed to be affixed to automobile visors. However, there is nothing in the design of the article that would limit its use to automobiles. The elastic bands do not necessarily suggest that its principal use would be with a car visor, as opposed to carried in a pocket, handbag, briefcase, etc. CBP now states that there is nothing in the design of the visor wallet and auto wallet that would limit their use to automobiles.
In NY R04768, CBP found that the Catch-All organizer was suitable for use principally with a motor vehicle, due primarily to the bendable wire attached to the back of the article. The presence of the removable wire does not necessarily suggest that the organizer would be attached to a car, as opposed to a belt or bag, nor does it prevent the article from being carried in a pocket, handbag, briefcase, or affixed to a belt. Any such additional means of storing or carrying the organizer are equally appropriate and suitable. In short, CBP now states there is nothing in the design of the article that would limit its use to automobiles.
In addition, EN 87.08 lists a number of examples of items included in heading 8708. Such examples include tires, radiators, brake cables, bumpers, engine, battery and similar articles designed specifically for motor vehicles and of little to no use in any other context. Nothing like the articles at issue is mentioned in the ENs.
Heading 4202 provides for, among other items, wallets, purses, map cases, traveling bags, and similar containers of textile materials such as the instant articles. In classifying goods under the residual provision of "similar containers" of heading 4202, the Court of International Trade has stated as follows: "As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms." Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff 'd. 69 F. 3d 495 (Fed. Cir. 1995). The court found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, i.e. "to organize, store, protect and carry various items." Totes 865 F. Supp. at 872. The auto wallet, visor wallet and catch-all organizer are designed to store, protect, and carry personal documents and other items. They thus share the essential character and purpose of the containers of heading 4202.
In addition, many prior rulings have classified similar articles in heading 4202, despite their claimed use as motor vehicle accessories. (See bulletin for ruling numbers.)
CBP now proposes that by application of GRI 1, the visor wallet, the catch-all organizer and the auto wallet are classified in subheading 4202.92.9026, which provides for "other" containers and cases, with outer surface of textile materials, of man-made fibers.
Proposed: 4202.92.9026, 17.6%; Current: 8708.29.50, 2.5%
February 10, 2010 CBP Bulletin (Vol. 44, No. 7) available at: http://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2010/Vol.%2044%20February%2010,%202010,%20No.%2007/