CLA-2 CO:R:C:T 953583 ch
District Director
Dallas/Fort Worth District
1215 Royal Lane
Post Office Box 619050
Fort Worth, Texas 75261
RE: Application for further review of Protest No. 5501-92-
100416 under 19 U.S.C., section 1514(c)(2);
classification of an insulated cooler of plastic
sheeting.
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
Mr. Samuel Mims, Esquire, on behalf of the importer of
record, Kyle B. Walker, has furnished us with the following
description of the subject merchandise, the Puff-n-Tote
inflatable cooler:
The imported merchandise is chiefly and
predominantly an article of double walled plastic
material, shaped so as to form a rectangular container
13" x 9". The double walls of the main container and
lid are selectively joined and adhered together so as
to create air passages and pockets to contain air.
Inflation nozzles and their closures of plastic are
positioned and formed in each of the main container and
the lid. The bottom of the container consists of three
pieces of thermally retardant pressed cardboard,
maintained in compartments where the double walled
plastic has been joined together. The container is
completed by a zipper to close the lid onto the main
part of the container and by an adjustable woven
textile carrying strap extending under the container
lengthwise, up the sides, and over the lid in its
closed position.
In its imported, i.e. non-inflated, condition, the
container comes in a package of, or folds down in size
to, approximately 10 1/2" x 5 1/2" x 2". When inflated
by blowing through the two nozzles, a free standing,
firm, and self-supporting insulating container, 13" x
9" x 10 1/2" is formed. It is suitable for packs of
cold drinks...The double wall air pockets in the
container sides and lid create thermal barriers and
very effectively keep food and beverages cold or hot,
as the case may be--for hours. Its purpose and use is
as a container for food and beverages and either keep
them hot or cold whichever is intended.
The fact that the cooler may be deflated and folded into a more
compact shape suggests that its walls are formed from plastic
sheets. In addition, the presence of a carrying strap indicates
that the cooler is designed to transport food and beverages
during travel.
ISSUE:
Whether the insulated cooler is classifiable under
subheading 4202.92, HTSUSA, which provides for travel, sports and
similar bags?
LAW AND ANALYSIS:
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, provides for:
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, traveling bags, sports bags and similar containers of, or
covered with, plastic sheeting are classifiable under heading
4202.
Chapter 42, Additional U.S. 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 containers.
(Emphasis added).
Therefore, if the instant cooler is designed to carry personal
effects during travel, it is classifiable as a travel, sports and
similar bag pursuant to U.S. Additional Note 1.
In Headquarters Ruling Letter (HRL) 953458, dated April 16,
1993, we discussed the application of U.S. Additional Note 1 to a
textile covered insulated cooler bag:
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.
This rationale controls the classification of the instant cooler,
as HRL 953458 involved substantially similar merchandise.
Accordingly, this item is classifiable as a travel, sports and
similar bag pursuant to heading 4202.
In his protest, Mr. Mims contends that heading 3923, which
provides for articles for the conveyance or packing of goods, of
plastics, or heading 3926, which provides for other articles of
plastics, describes the insulated cooler. However, legal note
2(h) to Chapter 39 states that the chapter does not cover
containers of heading 4202. As we find that heading 4202
describes the cooler, headings 3923 and 3926 are inapplicable.
However, Mr. Mims cites several of our prior rulings in
support of his claim that an insulated cooler is properly
classified pursuant to Chapter 39. In HRL 083362, dated July 21,
1989, we classified a molded plastic picnic cooler under heading
3923. This ruling was revoked in HRL 088075, dated October 24,
1990. In HRL 088075, we found that the picnic cooler was a
container similar to certain containers of heading 4202. Hence,
it was re-classified under heading 4202.
In HRL 084064, dated June 13, 1989, we classified food boxes
available in 9 to 35 cubic foot capacities, as well as 90 gallon
refuse bins, under heading 3923. The containers which were the
subject of this ruling were intended for bulk storage and/or
shipping purposes. On the other hand, containers of heading 4202
are generally designed for the transport, display and/or storage
of personal effects. Accordingly, HRL 084064 did not involve
merchandise similar to the instant cooler.
In HRL 083856, dated May 18, 1989, we classified a molded
plastic thermos under heading 3923. A plastic thermos cannot be
classified as a travel bag, pursuant to subheading 4202.92, due
to its material composition. Therefore, the classification of a
molded plastic thermos under heading 3923 does not control the
outcome in this case.
Mr. Mims also makes reference to HRL 085850, dated January
11, 1990. In that ruling, we classified two knit fabrics
pursuant to Section XI, HTSUSA. This merchandise bears no
resemblance to the instant cooler, and appears to have been cited
in error.
Finally, in an oral communication with this office Mr. Mims
drew 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 the cooler was "of a class or kind of merchandise with
a different purpose than articles in the luggage provision." 806
F. Supp. at 272. The Court then concluded that the merchandise
was classifiable under item 772.15 or 772.16, TSUS, which was the
proper classification for articles chiefly used for preparing,
serving, or storing food or beverages. This finding was based on
General Interpretive Rule 10(e), which controlled tariff
classification based on use. Id. at 272-274.
Sports Graphics does not operate as precedent in this case
as it was decided under the TSUS, which has been superseded by
the HTSUSA. In addition, 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 headings 3923 or 3926, HTSUSA. Hence,
the Court's discussion regarding item 772, TSUS, has no bearing
on the classification of similar merchandise under the HTSUSA.
Moreover, in Sports Graphics the Court relied on General
Interpretive Rule 10(e), TSUS, to resolve the dispute. This rule
governed classification of goods based upon the principle of
"chief use." General Interpretive Rule 10(e) was not carried
over into the HTSUSA. In addition, the doctrine of chief or
principal use is not at issue in this case because containers
classifiable under heading 4202 are completely excluded from
headings 3923 and 3926. See Chapter 39, note 2(h).
HOLDING:
Therefore, based on the foregoing discussion, this protest
should be denied in full. The Puff-n-Tote inflatable cooler is
classifiable under subheading 4202.92.4500, which provides for
travel, sports or similar bags: with outer surface of plastic
sheeting or of textile materials: other. The applicable rate of
duty is 20 percent ad valorem. A copy of this decision should be
attached to the CF 19 Notice of Action to satisfy the notice
requirement of section 174.30(a), Customs Regulations.
Sincerely,
John A. Durant, Director
Commercial Rulings Division