CLA-2; CO:R:C:T 953458 ch
Norman Katz, Esquire
Barnes, Richardson & Colburn
475 Park Avenue South
New York, New York 10016
RE: Classification of soft-sided cooler bag; chief use;
food and beverages are personal effects; travel, sports
and similar bags; Sports Graphics.
Dear Mr. Katz:
This is in response to your letter of December 18, 1992,
requesting tariff classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), for the
"Coldsac" cooler/picnic bag. A sample was provided to our office
for examination and will be returned to you under separate cover.
Please reference your client, Academy Broadway Corporation.
FACTS:
The submitted sample is an insulated carrying bag used to
transport and store food and beverages. It is composed of a 210
denier nylon oxford acrylic coated shell, with a .15 millimeter
pvc lining containing P.E. foam on the inside and a removable
interior lining of plastic sheeting. The top is secured by a
zippered interlocking flap. This article features an adjustable
woven shoulder strap, woven handle and an exterior pocket secured
by means of a zipper.
ISSUE:
What is the proper tariff classification of the submitted
"Coldsac" cooler/picnic bag.
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 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.
You contend that the scope of the luggage provision under
the TSUS is "virtually identical" to that of heading 4202,
HTSUSA. Therefore, in light of Sports Graphics, the "Coldsac"
cooler is not ejusdem generis with the exemplars of heading 4202.
Accordingly, it is your position that this article is not
classifiable under heading 4202. In the alternative, you suggest
classification of the cooler under one of the following
provisions of the HTSUSA:
1. Heading 3923, which provides for articles for the
conveyance or packing of goods;
2. Heading 3926, which provides for other articles of
plastics not more specifically described elsewhere in the
Nomenclature; or
3. Heading 6307, which provides for other textile articles
not more specifically described elsewhere in the Nomenclature.
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. 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, 3926 or 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
in this case because containers classifiable under heading 4202
are completely excluded from headings 3923, 3926 and 6307. See
Section XI, note 1(l); Chapter 39, note 2(h).
Finally, the competing provisions you suggest either do not
describe the cooler or are less specific than heading 4202. The
Explanatory Notes (EN) to heading 3923 state 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.
The exemplars cited in this passage describe articles used for
the transporting or shipping of goods, and not articles used for
the storing or preparing of food. It follows that heading 3923
does not describe the subject merchandise.
Headings 3926 and 6307 are basket provisions for textile and
plastic articles not more specifically described elsewhere in the
Nomenclature. As we find that the cooler bag is classifiable
under heading 4202, headings 3926 and 6307 are 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