OT:RR:CTF:CPMM
H305292MMM
Samantha Jean Gaglio
Customs Compliance Manager
Lifetime Products
Freeport Center, Building D-12
Clearfield, UT 84016
RE: Revocation of NY N285560, HQ 085323, NY N024773, NY N259674, NY N262814, NY N263691, and NY N276904; Classification of rigid plastic coolers
Dear Ms. Gaglio,
This is in reference to the New York Ruling Letter (NY) N285560, issued to you by U.S. Customs and Border Protection (CBP) on May 2, 2017, concerning classification of a cooler and two components of the cooler under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed your ruling, and determined that it is incorrect, and for the reasons set forth below, are modifying your ruling in regard to the cooler.
We have also reviewed the following rulings: HQ 085323, dated September 14, 1984, NY N024773, dated April 11, 2008, NY N259674, dated December 12, 2014, NY N262814, dated April 9, 2015, NY N263691, dated April 29, 2015, and NY N276904, dated July 22, 2016, and determined that they are also incorrect, and for the reasons set forth below, we are revoking those rulings.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Volume 53, No. 45, on December 11, 2019. One comment, which will be addressed below, was received in response to this notice.
FACTS:
In NY N259674, N262814, N263691, N276904, and N285560, CBP ruled on the classification of hard-sided coolers made of molded plastic and insulated by polyurethane foam. The use of the subject merchandise is to temporarily hold beverages and foods together with ice to keep them cold.
CBP classified the coolers in heading 9403, citing to EN 94.03. The coolers subject to the above rulings were considered ice-boxes and ice-chests because they contained no active refrigerating element and were insulated by polyurethane foam.
In HQ 085323, CBP concluded that the classification of a molded plastic insulated cooler was heading 3923 of the HTSUS, as an article for the conveyance or packing of goods, of plastics. The cooler contained a compartment in the front which contained an opener, a knife, two spoons, and two forks. CBP found that the essential character of the cooler and utensils was the cooler.
Additionally, NY N024773 concluded that a similar plastic cooler was classified under heading 3924, as tableware, kitchenware…of plastics.
ISSUE:
Whether the subject rigid plastic coolers are classified in heading 3923, as articles for the conveyance or packing of goods, in heading 3924, as tableware, kitchenware, [or] other household articles of plastics, in heading 4202 as trunks, suitcases…and similar containers, or in heading 9403, as other furniture.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 2(a) provides, in relevant part, that "[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished articles has the essential character of the complete or finished article."
The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings . See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2020 HTSUS provisions under consideration are as follows:
3923: Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and
other closures, of plastics
3924: Tableware, kitchenware, other household articles and hygienic or toilet articles, of
plastics
4202: Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle
cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, 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
9403: Other furniture and parts thereof:
Chapter 39, note 2(m) excludes “…trunks, suitcases, handbags or other containers of heading 42.02.
The General Explanatory Notes to Chapter 94 states that “furniture” means:
Any “movable” articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cafés, restaurants, laboratories, hospitals, dentists’ surgeries, etc., or ships, aircraft, railway coaches, motor vehicles, caravan trailers or similar means of transport. (It should be noted that, for the purposes of this Chapter, articles are considered to be “movable” furniture even if they are designed for bolting, etc., to the floor, e.g., chairs for use on ships). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category.
The EN to heading 9403, states:
[I]ce boxes, ice chests and the like, and also insulated cabinets not equipped or designed to contain an active refrigerating element but insulated simply by glass fibre, cork, wool, etc., remain classified in this heading.
We begin our analysis with GRI 1. Under note 2(m) to Chapter 39, if the merchandise is described as a container of 4202, it is excluded from classification in either heading 3923 or heading 3924.
Heading 4202 applies to Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers. The Federal Circuit, in Totes, Inc. v. United States, applying the rule of ejusdem generis, found that imported merchandise are “of the same kind” as the enumerated articles in 4202 when they are “containers…used to organize, store, and protect specific items.” The Federal Circuit has stated that the appropriate analysis of ejusdem generis is as follows:
Under the rule of ejusdem generis, which means "of the same kind," where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. 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.
The subject merchandise is “of the same kind” as the enumerated articles, as it used by consumers to store, organize, and protect (through insulation) food and beverages, while travelling. Additionally, coolers and the enumerated articles share physical characteristics; they are rectangular containers with hinged tops and a single compartment for storing specific items, such as food, beverages, clothes, a specific musical instrument, etc. Also, similar to the enumerated articles, when coolers are of a larger size, they usually include handles to allow for ease when traveling.
In SGI, Inc. v. United States, the Federal Circuit classified soft-sided vinyl insulated coolers with handles under Heading 3924 over Heading 4202, focusing on the involvement of food and beverages. The Federal Circuit found that although soft-sided vinyl insulated bags were designed to protect, store, and carry a wide-range of products, including consumable goods, that the focus of the analysis should be on whether the eo nomine exemplars found in 4202 carried food and beverages. At the time of SGI, there were no such examples, however, the second part of 4202 heading now includes “insulated food or beverage bags.” Additionally, the Federal Circuit also relied on the EN to Heading 3924, which specifically mentioned “luncheon boxes” as an example of “other household articles.” The EN to Heading 3924 no longer includes this example.
Furthermore, since the merchandise is classifiable in heading 4202 as a container, it cannot be classified in Chapter 39.
The merchandise is not classifiable as furniture in heading 9403. The courts have construed “furniture” to mean articles “for the use, convenience, and comfort of the house dweller and not subsidiary articles for ornamentation alone.” Furthermore, the courts have distinguished “furniture” from articles that are “subsidiary adjuncts and appendages designed for the ornamentation of a dwelling or business place, or which are of comparatively minor importance so far as use, comfort, and convenience are concerned.”
Although a cooler is a movable article with a utilitarian purpose, as it is useful to those travelling with food and beverages, it lacks the characteristics of furniture found as examples in Chapter 94 and is not likely to equip a private dwelling. It may be stored in a private dwelling, but it would serve its purpose outside of the dwelling-this is especially illustrated by the coolers that include drain plugs, which would allow users to drain melted ice. Additionally, it is not used for comfort and convenience in the home.
We note that the merchandise in Ruling NY R01732, which classified a cooler under 9403, is distinguishable. In that ruling the container was described as follows:
[M]ade of a steel container that mounts to a steel leg structure with rolling plastic castors attached to the bottom of the four legs. The container has a lid that hinges in the middle allowing consumers access from two sides of the container. Both the steel container and lid are insulated with Styrofoam. It can be used both indoors and outdoors to keep beverages cold by placing ice within.
The merchandise in R01732 is more akin to furniture and dissimilar to the plastic coolers, as it can be utilized indoors, includes legs, and is made of steel. This product can be displayed in the house or outside as furniture and serves a utilitarian purpose, unlike the plastic coolers, which tend to be stored in a private dwelling, office, etc., until needed. Rigid plastic coolers cannot be classified under 9403 as furniture.
In the comment we received, the commenter proposed that the coolers should be classified under subheading 3924.10.4000, HTSUS, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Tableware and kitchenware: Other.” In particular, the commenter claimed that coolers have a specific purpose, to store food, which is inconsistent with the articles enumerated in heading 4202. The comment also asserts that the coolers are not primarily used to store, organize, and protect items while traveling.
In support of its argument, the commenter relied on Otter Products, LLC. v. United States, 834 F.3d 1369 (Fed. Cir. 2016), in which the Federal Circuit held that plastic phone cases/covers were not “similar containers” to the exemplars in heading 4202 because they were not containers and they did not organize (“only hold one electronic device”), store (“devices remain fully functional” [and not] “set aside” for future use), and carry (“add nothing to the carrying capability that the electronic device standing alone, would not already have”).
Unlike the phone cases in Otter Products, rigid coolers are containers which can organize, store, and carry (include handles) several items for future use. Additionally, the coolers also protect the items stored through insulation. Therefore, we are not persuaded by the commenter’s assertion that the coolers are not “similar containers” to the exemplars in heading 4202. Having considered the submitted comment, CBP finds that the subject rigid plastic coolers are classified under subheading 4202.12.2120, HTSUS.
HOLDING:
By application of GRI 1, and in the case of the merchandise described in HQ 085323, by GRI 3(b), the subject rigid plastic coolers, are classified in heading 4202, HTSUS, specifically in subheading 4202.12.2120, HTSUS, which provides for: “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers: With outer surface of plastics or of textile materials: With outer surface of plastics: Trunks, suitcases, vanity cases and similar containers: Structured, rigid on all sides.” The 2020 column one general rate of duty for subheading 4202.12.2120, HTSUS, is 20% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts
EFFECT ON OTHER RULINGS
New York Ruling Letter N285560, dated May 2, 2017, is hereby MODIFIED in accordance with the above analysis.
Headquarters Ruling Letter 085323, dated September 14, 1984, and New York Ruling Letters N024773, dated April 11, 2008, N259674, dated December 12, 2014, N262814, dated April 9, 2015, N263691, dated April 29, 2015, and N276904, dated July 22, 2016, are hereby REVOKED in accordance with the above analysis.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division
CC: Melinie Prosk
Bill White, Inc.
5959 West Century Blvd., Suite 1422
Los Angeles, CA 90045-6589
CC: James L.K. Dahlberg
Big Chili Coolers
77-6238 C Mamalahoa Highway
Holualoa, HI 96725
CC: Matthew J. Basile
Vice President
Star Asia Customs Trade & Security, Inc.
208 Church Street
Decatur, GA 30030
CC: Cathy Chafin, President
Waters Shipping Company
2307 Burnett Blvd.
Wilmington, NC 28401
CC: Lisa M. Madrid
Import Manager
Saving Shipping and Forwarding USA, Inc.
550 E. Devon Avenue, Suite 100
Itasca, IL 60143
CC: Chris Kuehler
Director
Russel A. Farrow (U.S.) Inc.
431 Isom Road, Suite 107
San Antonio, TX 78216