CLA-2; CO:R:C:T 953275 ch
John M. Peterson, Esquire
Neville, Peterson & Williams
Counsellors at Law
39 Broadway
New York, New York 10006
RE: Classification of soft-sided cooler/tote bags; chief
use; food and beverages are personal effects; travel,
sports and similar bags; Sports Graphics; TSUS 706,
772; HTSUSA 4202, 3923.
Dear Mr. Peterson:
This is in response to your letter of November 14, 1992,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), for the "Totes
Cooler Bag." A sample was provided to our office for examination
and will be returned to you under separate cover.
FACTS:
The sample submitted is described as the "Totes Cooler Bag,"
style 2806. This item measures 15 inches by 7 inches by 9 inches
and is a size medium. It features a top three-sided zipper
closure and double handles of nylon webbing. The body is of a
three layer construction consisting of an outer surface of 420D
oxford nylon, an inner layer of PVC foam and a lining of frosted
waterproof PVC sheeting material. The Totes Cooler Bag is used
for the storage and transport of foods, beverages, and other
articles requiring maintenance of a constant temperature.
ISSUE:
Whether the Totes Cooler Bag is classified under heading
4202, HTSUSA, which provides in part for traveling and sports
bags, or heading 3923, HTSUSA, which provides in part for
articles for the conveyance or packing of goods, of plastics, or
heading 6307, HTSUSA, which provides for other made up textile
articles?
LAW AND ANALYSIS:
In your written submission, you draw our attention to Sports
Graphics, Inc. v. United States, 806 F. Supp. 268 (CIT 1992). In
that case, the Court of International Trade addressed the proper
classification of merchandise substantially similar to the
instant article under the Tariff Schedules of the United States
(TSUS). In Sports Graphics, the Court acknowledged that in the
past articles similar to the instant merchandise had been found
to meet the statutory definition of "luggage." Id. at 271; See
Prepac, Inc. v. United States, 78 Cust. Ct. 108, 433 F. Supp. 339
(1977) (insulated plastic picnic bags with handles and zippers
classified as "luggage"); Aladdin Int'l Corp. v. United States,
13 CIT 1038 (1989) (plastic lunch box properly classified as
"luggage"). However, it declined to follow this precedent, and
found that an insulated cooler fit the statutory requirements for
item 772.15, TSUS, which provided for articles chiefly used for
preparing, serving or storing beverages. Id. at 272.
In your brief, you advance essentially three arguments in
support of your position that the logic of Sports Graphics
controls the classification of similar merchandise under the
HTSUSA. First, you contend that in the past we have consistently
classified soft-sided insulated cooler bags under heading 4202,
HTSUSA, and molded or hard-sided coolers under heading 3923,
HTSUSA. Since you contend that coolers cannot be classified
under heading 4202, you argue that in the interests of
consistency soft-sided cooler bags should be classified under
heading 3923.
Second, you argue that the Court in Sports Graphics found
that an insulated cooler was not ejusdem generis with the
articles enumerated in the luggage provision under the TSUS, and
that this finding should preclude the classification of similar
merchandise under heading 4202, HTSUSA. In addition, you state
that coolers have the principal function of storage; i.e. to keep
food and beverages cold. The fact that coolers may be used to
transport food and beverages is only of secondary importance.
Hence, in light of the reasoning utilized in Sports Graphics, the
"chief use" of coolers is storage and heading 4202 is
inapplicable.
Finally, you point out that cooler bags contain insulating
material to keep their contents cold. You assert that insulating
material is not a characteristic found in the exemplars
enumerated by heading 4202. Therefore, you contend that coolers
cannot be considered "similar" to these exemplars, and cannot be
classified under heading 4202. Accordingly, you would have us
classify this article under heading 3923, which provides for
articles for the conveyance or packing of goods, of plastics. In
the alternative, you propose heading 6307, which encompasses
other made up textile articles not more specifically provided for
elsewhere in the Nomenclature.
Hard-Sided v. Soft-Sided Coolers
In your binding ruling request, you cite several of our
prior rulings in support of the proposition that it is our
practice to classify soft-sided cooler bags under heading 4202,
and molded or hard-sided cooler bags under heading 3923.
However, in HRL 950467, dated December 24, 1991, we classified a
"molded plastic insulated cooler" under heading 4202. In that
ruling, we stated:
In addition, HRL 082788 classified a molded plastic
cooler under heading 3923. These rulings no longer
represent the position of the Customs Service on this
type of merchandise. (Emphasis added).
Moreover, you cite HRL 088076, dated October 24, 1990, as an
example of a soft-sided insulated cooler bag classified under
heading 4202. In fact, the merchandise which was the subject of
that ruling was a "moulded plastic insulated picnic cooler."
Despite the fact that this article was molded, we classified it
under heading 4202.
We conclude that it is not our practice to distinguish
between soft and hard sided coolers with respect to
classification under headings 3923 and 4202.
TSUS v. HTSUSA
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
Heading 4202, HTSUSA, covers:
Trunks, Suit-Cases, Vanity-Cases, Executive-Cases,
Briefcases, School Satchels, Spectacle Cases, Binocular
Cases, Camera Cases, Musical Instrument Cases, Gun
Cases, Holsters and Similar Containers; Travelling-
Bags, Toilet Bags, Rucksacks, Handbags, Shopping-Bags,
Wallets, Purses, Map-Cases, Cigarette-Cases, Tobacco-
Pouches, Tool Bags, Sports Bags, Bottle-Cases,
Jewellery Boxes, Powder-Boxes, Cutlery Cases and
Similar Containers, of Leather or of Composition
Leather, of Sheeting of Plastics, of Textile Materials,
of Vulcanised Fibre or of Paperboard, or Wholly or
Mainly Covered with Such Materials or With Paper.
(Emphasis added).
Thus, containers similar to those enumerated are classified under
this heading.
Chapter 42, U.S. Additional Note 1, states:
For the purposes of heading 4202, the expression
"travel, sports and similar bags" means goods, other
than those falling in subheadings 4202.11 through
4202.39, of a kind designed for carrying clothing and
other personal effects during travel, including
backpacks and shopping bags of this heading, but does
not include binocular cases, camera cases, musical
instrument cases, bottle cases and similar cases.
(Emphasis added).
Webster's New Collegiate Dictionary, G.&C. Merriam Co.
(1977), defines a "backpack" as follows:
backpack vt: to carry (food or equipment) on the back
esp. in hiking. (Emphasis added).
Hence, the "backpack" exemplar in this note supports the
proposition that containers used to transport food and beverages
are within the purview of heading 4202. Similarly, a shopping
bag is commonly used to transport food, beverages and other
articles. As backpacks and shopping bags are designed to carry
food and beverages, we conclude that food and beverages are
"personal effects" for the purposes of Chapter 42. Moreover, an
insulated cooler bag is a container similar to a backpack and
shopping bag, as it is designed to carry food and beverages
during travel (i.e. for picnics and other outings). Hence, the
cooler bags are classifiable as travel bags pursuant to heading
4202.
We note that Sports Graphics does not operate as precedent
in this case. Sports Graphics was decided under the TSUS, which
has been superseded by the HTSUSA. Moreover, heading 4202,
HTSUSA, and item 706, TSUS, are not analogous provisions, as
heading 4202 contains language and exemplars not included in item
706. Hence, these provisions vary in scope.
Furthermore, item 772, TSUS, which provides for articles
chiefly used for preparing serving, or storing food or beverages,
bears no resemblance to heading 3923 or heading 6307 HTSUSA. In
Sports Graphics, the Court relied on General Interpretive Rule
10(e) to resolve the dispute. This rule governed classification
of goods based upon the principal of "chief use." General
Interpretive Rule 10(e) was not carried over into the HTSUSA. In
addition, the doctrine of chief or principle use is not at issue
because containers classifiable under heading 4202 are completely
excluded from headings 3923 and 6307. See Section XI, note 1(l);
Chapter 39, note 2(h).
In addition, the (EN) to heading 3923 provide that:
This heading covers all articles of plastics commonly
used for the packing and conveying of all kinds of
products. The articles covered include:
(a) Containers such as boxes, cases, crates,
sacks and bags (including cones and refuse
sacks), casks, cans, carboys, bottles and
flasks.
The heading also covers cups without
handles having the character of containers
used for the packing or conveyance of certain
foodstuffs, whether or not they have a
secondary use as tableware or toilet
articles.
(b) Spools, cops, bobbins and similar supports.
(c) Stoppers, lids, caps and other closures.
The heading excludes, inter alia, household
articles such as dustbins, and cups which are used as
tableware or toilet articles and do not have the
character of containers for the packing or conveyance
of goods, whether or not sometimes used for such
purposes, (heading 39.24), and containers of heading
42.02. (Emphasis added).
The exemplars cited in this passage appear to describe shipping
articles, and not articles used for the storing or preparing of
food. It follows that heading 3923 does not describe the subject
merchandise.
Finally, heading 6307 is a basket provision for textile
articles not more specifically described elsewhere in the
Nomenclature. Heading 4202 is a more specific provision than
heading 6307. As we find that the cooler bag is classifiable
under heading 4202, heading 6307 is inapplicable.
HOLDING:
The subject merchandise is classifiable under subheading
4202.92.3030, HTSUSA, which provides in part for travel and
sports bags: other: with outer surface of plastic sheeting or
of textile materials: travel, sports and similar bags: with
outer surface of textile materials: other, other: of man-made
fibers: other. The applicable rate of duty is 20 percent ad
valorem. The textile quota category is 670.
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 the subject of frequent negotiations 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 issuance
of the U.S. Customs Service, which is updated weekly and is
available at the local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact the local
Customs office prior to importing the merchandise to determine
the current status of any import restraints or requirements.
Sincerely,
John Durant, Director