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HQ 953583


May 26, 1993

CLA-2 CO:R:C:T 953583 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

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

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