CLA-2 RR:TC:TE 956009 SK
Port Director
U.S. Customs Service
33 Montgomery Street
San Francisco, CA 94105
RE: Decision on Application for Further Review of Protest No.
2809-93-102067; classification of molded plastic picnic cooler
which incorporates dual speakers and a printed circuit amplifier;
4202.99.9000, HTSUSA; SGI, Incorporated v. United States, Slip
Op. 96-92 (January 19, 1996); GRI 3(b); essential character
imparted by the cooler; HRL's 953841 (9/27/93); 954072 (9/2/93);
953583 (5/26/93); 953275 (4/26/93); 953458 (4/16/93);087057
(12/21/90); 082788 (2/12/90).
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Diane L. Weinberg of Sandler, Travis &
Rosenberg, P.A., on behalf of Coolers Plus, Inc., against your
decision regarding the classification of a molded plastic picnic
cooler which incorporates dual speakers and a printed circuit
amplifier. The protest was filed on December 21, 1993. At issue
are two entries made at the port of San Francisco on June 14 and
15, 1993, both of which were liquidated on October 1, 1993.
FACTS:
The subject merchandise consists of a molded plastic
insulated picnic cooler which incorporates dual speakers and a
printed circuit amplifier. The cooler is insulated with styrofoam
and features an external nylon zippered pouch with a hard plastic
back that has four lock-in tabs which connect with the backside
of the cooler.
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The nylon pouch is designed to carry electronic accessories.
The subject merchandise was liquidated under subheading
4202.99.9000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which provides for:
"[T]runks, suitcases, vanity cases, attache cases,
briefcases, school
satchels, spectacle cases, binocular cases, camera cases,
musical
instrument cases, gun cases, holsters and similar
containers; traveling
bags, toiletry bags, knapsacks and backpacks, 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 vulcanized fiber or of
paperboard, or
wholly or mainly covered with such materials, or with paper:
other:
other: other... ."
In counsel's submission to this office, it is argued that
the subject cooler is not ejusdem generis with the containers of
heading 4202, HTSUSA and that the appropriate classification
analysis in this instance is provided by GRI 3(c) in that the
cooler and the speakers form a composite having no essential
character. Using this analysis, classification is sought under
subheading 8518.50.0000, HTSUSA, or, in the alternative, under
subheadings 3926.90.9000, 3923.10.0000 or 9403.70.8000, HTSUSA.
ISSUE:
What is the proper classification of the subject
merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification shall be determined according to the terms of
the headings and any relative section or chapter notes, taken in
order. Merchandise that cannot be classified in accordance with
GRI 1 is to be classified in accordance with subsequent GRI's.
As evidenced by the enumerated exemplars listed supra,
heading 4202, HTSUSA, provides for a vast array of cases and
containers designed to store, protect
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and transport a variety of personal effects and other articles.
Although "coolers" are not expressly listed as an exemplar of
this heading, it has long been Customs' opinion
that they are classifiable as "similar" to, or ejusdem generis
with, the containers of this heading. See Headquarters Ruling
Letters (HRL's) 953841 (9/27/93); 954072
(9/2/93); 953583 (5/26/93); 953275 (4/26/93); and 953458
(4/16/93).
The correctness of Customs' presumption was recently
examined by the Court of International Trade (C.I.T.) in SGI,
Incorporated v. United States, Slip Op. 96-22, decided January
19, 1996. In SGI, Inc., the court examined whether a soft-sided
insulated cooler was ejusdem generis with the containers of
heading 4202, HTSUSA. The court noted:
"... for application of ejusdem generis to Heading 4202, it
is the
exemplar containers' purpose or use for storage,
transportation,
protection, etc., that is relevant, and not whether the
contents stored
and/or carried by the exemplar containers are for food or
beverages.
Although most of the Heading 4202 exemplar containers are
not
specifically designed and constructed for storage of food or
beverage to maintain a cold temperature over time, precise
functional equivalence to, or commercial interchangeability
with,
particular exemplars enumerated in Heading 4202 is plainly
not
required by the term "similar" or the rule of ejusdem
generis. See
Totes, Inc. v. United States, 18 CIT ___, 865 F. Supp. 867
(1995),
aff'd, 14 Fed. Cir. (T) ___, 69 F.3d 495 (1995)... [A]s the
Court
has found that the coolers are ejusdem generis with the
exemplar
containers in Heading 4202, they are classifiable as
similar
containers' within the purview of subheading 4202.92.90,
HTSUS, a less specific subheading than subheading
4202.92.45."
[emphasis in the original]
See SGI, Inc. at pages 15-16, 25. As the C.I.T. has conclusively
upheld Customs' classification of coolers within heading 4202,
HTSUSA, the subject merchandise is similarly classifiable within
this provision of the nomenclature. Classification is proper
under subheading 4202.99.9000, HTSUSA, as the subject cooler is
made of molded plastic, and not with an outer surface of soft-sided vinyl as was the case with the "Chill" coolers at issue in
SGI, Inc..
Chapter Note 2(h) of Chapter 39, HTSUSA, excludes from
coverage within this chapter:
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(h) Saddlery or harness (heading 4201) or trunks, suitcases,
handbags
or other containers of heading 4202." [emphasis added]
As the subject cooler is classifiable under heading 4202, HTSUSA,
it cannot be classified within Chapter 39 by mandate of the
Chapter Note set forth above. On this basis, any further
analysis of the protestant's asserted classification of the
subject merchandise under headings 3926 or 3923, HTSUSA, is
rendered moot.
Counsel for the protestant describes the subject merchandise
as a "Stereo Cooler" and submits that subheading 8518.50, HTSUSA,
should be taken into consideration using a GRI 3 classification
analysis. We note that the subject cooler does not contain a
stereo, but rather dual speakers and a printed circuit amplifier.
Although counsel proposes that the amplifier component is
classifiable under subheading 8518.50, HTSUSA, which provides for
"electric sound amplifiers," there appears some question as to
whether the amplifiers are indeed "electric sound amplifiers" or
whether they are more precisely described as "audio-frequency
electric amplifiers" of subheading 8518.40, HTSUSA. The
distinction as between the two subheadings, in this instance, is
nondeterminative as is explained infra. The two components of
the subject cooler are described by both heading 4202, HTSUSA,
and heading 8518, HTSUSA. As two headings potentially govern
classification of the subject merchandise, GRI 3 provides the
appropriate analysis.
GRI 3(a) states that when goods are prima facie classifiable
under two or more headings, classification shall be effected as
follows:
"(a) The heading which provides the most specific
description
shall be preferred to headings providing a more general
description. However, when two or more headings each
refer
to part only of the materials or substances contained
in mixed
or composite goods or to part only of the items in a
set put up
for retail sale, those headings are to be regarded as
equally
specific in relation to those goods, even if one of
them gives a
more complete or precise description of the goods."
In this instance, headings 4202 and 8518, HTSUS, are equally
specific in relation to one another. As we cannot classify these
goods pursuant to GRI 3(a), we turn to GRI 3(b) which reads:
"(b) Mixtures, composite goods consisting of different
materials
or made up of different components, and goods put up in
sets
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for retail sale, which cannot be classified by
reference to 3(a),
shall be classified as if they consisted of the
material or component
which gives them their essential character, insofar as
this criterion
is applicable."
Explanatory Note (EN) VIII to GRI 3(b) states:
"[T]he factor which determines essential character will vary
as between
different kinds of goods. It may, for example, be
determined by the
nature of the material or component, its bulk, quantity,
weight
or value, or by the role of a constituent material in
relation to the use
of the goods."
In situations where articles of 4202, HTSUSA, incorporate
electrical devices into their design, Customs has consistently
held that it is the 4202 component which imparts the essential
character to the article as a whole. See HRL's 087057, dated
December 21, 1989; 089901, dated April 2, 1992; 955261, dated
April 14, 1994; New York Ruling Letters (NYRL's) 841628, dated
June 6, 1989; and 853347, dated July 3, 1990. In each of these
cases, the article involved a fully functional carry case or bag
of heading 4202, HTSUSA, and a complete electronic device.
Similarly, in this instance, this office is of the opinion that
it is the cooler which imparts the essential character to the
article. A consumer's motivating impetus to purchase this
article is the need or desire for a container which can store,
protect and transport food and beverages at a cool temperature.
The fact that this cooler can also amplify music which has been
directed into the amplifier and speakers from an external output
source makes the cooler distinctive and more attractive to some,
however it is difficult to imagine a situation where a consumer
would purchase this article for use as an amplifier. The
essential character of the subject cooler is imparted by the
4202, HTSUSA, component and classification is therefore proper
under subheading 4202.99.9000, HTSUSA.
We think it significant to note, however, that if the
amplifier component were to be deemed classifiable as an "audio-frequency electric amplifier" of subheading 8518.40, HTSUSA, the
Explanatory Notes (EN) to this heading, at page 1364, require
that such amplifiers be "presented separately." As the subject
amplifiers are not presented separately, but are incorporated
into the body of a cooler, classification within heading 8518,
HTSUSA, is precluded and classification of the subject
merchandise would fall under heading 4202.99.9000, HTSUSA, based
on a GRI 1 analysis.
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HOLDING:
The subject merchandise is classifiable under subheading
4202.99.9000, HTSUSA, which provides for "[T]runks, suitcases,
vanity cases, attache cases, briefcases, school satchels,
spectacle cases, binocular cases, camera cases, musical
instrument cases, gun cases, holsters and similar containers;
traveling bags, toiletry bags, knapsacks and backpacks, 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 vulcanized fiber or of paperboard, or
wholly or mainly covered with such materials, or with paper:
other:
other: other... ." The applicable rate of duty is 20 percent ad
valorem.
As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
liquidated, you are instructed to deny the protest in full.
A copy of this decision should be attached to the Form 19
and provided to the protestant as part of the notice of action on
the protest. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision should be
mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision.
Sixty days from the date of this decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service,
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division