CLA-2 CO:R:C:T 954072 SK
Norman Katz
Barnes, Richardson & Colburn
475 Park Avenue South
New York, N.Y. 10016
RE: Affirmation of HRL 953458 (4/16/93); classification of soft-
sided cooler under 4202.92.3030, HTSUSA; Sports Graphics, Inc. v.
U.S., 806 F. Supp. 268 (CIT 1992); Prepac, Inc. v. U.S., 78 Cust.
Ct. 108,433 F.Supp. 339 (1977); Aladdin Int'l Corp. v. U.S., 13
CIT 1038 (1989); HRL 087281 (10/29/90); food is considered a
"personal effect" for purposes of classification within heading
4202, HTSUSA.
Dear Mr. Katz:
On April 16, 1993, this office issued you Headquarters
Ruling Letter (HRL) 953458 in which we classified a soft-sided
insulated cooler-bag under subheading 4202.92.3030, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA). Upon
review, that classification is affirmed. Our analysis follows.
FACTS:
The article at issue is a soft-sided insulated cooler-bag
used to transport food and beverages. It is made from a 210
denier nylon oxford acrylic coated shell with a .15 millimeter
polyvinylchloride lining containing foam on the inside and a
removable interior lining of plastic sheeting. The top is
secured by a zippered interlocking flap. This article has an
adjustable woven shoulder strap, woven handle and an exterior
pocket secured by means of a zipper.
ISSUE:
What is the proper classification of the subject
merchandise?
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LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (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.
In HRL 953458, this office classified the soft-sided cooler-
bag under review in subheading 4202.92.3030, HTSUSA, which
provides for, in pertinent part, "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." In that
ruling it was determined that the soft-sided cooler-bag at issue
was akin to travel, sport and similar bags with outer surfaces of
plastic sheeting. The applicable rate of duty was 20 percent ad
valorem and the textile quota category was 670.
In your submission to this office, dated April 29, 1993, you
contest the holding in HRL 953458 and state that the subject
merchandise is not properly classifiable under heading 4202,
HTSUSA, and that classification should be under either heading
3923, 3926 or 6307, HTSUSA. In support of this contention, you
state:
1) Customs' reliance on the definition of "backpack" as set forth
in Webster's New Collegiate Dictionary (1977) was misplaced;
2) the comparison of an insulated cooler as being similar to a
shopping bag or a backpack as a container used for carrying
food during travel is without foundation;
3) the conclusion that food and beverages are "personal effects"
for the purposes of Chapter 42, HTSUSA, is erroneous; and
4) Customs failed to consider the essential characteristic of
the imported article (i.e., its use in storing and
preserving perishable food and maintenance of refrigerated
temperatures).
Your assertion that Customs misguidedly relied on the
definition of "backpack" as set forth in Webster's New Collegiate
Dictionary (1977) has no legal bearing and provides no grounds
for revocation of HRL 953458. You state that other definitions
of the word "backpack" vary from the definition set forth in
Webster's New Collegiate Dictionary and do not expressly state
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that backpacks are used to carry food. You further state that as
backpacks could only carry non-perishable foods, the Webster's
New Collegiate Dictionary definition cited in HRL 953458 is
"incorrect, or at least extremely incomplete." Customs has a
valid and longstanding practice of referring to bona fide
lexicographic sources in order to determine the common meaning of
a word or phrase or to resolve confusion or ambiguities. There
is no error, therefore, in Customs referring to a legitimate
lexicographic source for guidance as to the commonly accepted
definition of the word "backpack", nor is there any requirement
that all lexicographic sources provide identical definitions of
that word. The Webster's New Collegiate Dictionary is a
legitimate lexicographic source and the definitions contained
therein are valid and may be used by this office for purposes of
aiding in classification.
In your second and third arguments, you state that this
office erroneously held that the insulated cooler-bag at issue
was similar to a shopping bag or a backpack used for carrying
food during travel and that we improperly deemed food and
beverages to be "personal effects" for purposes of classification
under heading 4202, HTSUSA. You state:
"[B]ased upon the dictionary definition of the term
"backpack' as a container used to transport food ... it
was concluded [in HRL 953458] that food and beverages
are 'personal effects' for the purposes of Chapter 42.
It was further concluded that an insulated cooler-bag is
similar to a backpack ... in that it is designed to carry
food and beverages during travel pursuant to Heading 4202
of the HTS."
This is an accurate interpretation of our position in HRL 953458,
however it in no way provides a basis for revocation of that
ruling. In HRL 953458, this office stated that the cooler-bag at
issue was similar to a backpack in two respects: both were used
to 1) transport food, 2) during travel. The capacity to
transport food is significant because the issue had been raised
as to whether food is a "personal effect" for purposes of
classification as a travel, sport or similar bag under heading
4202, HTSUSA. U.S. Additional Note 1 to Chapter 42, states:
"For purposes of heading 4202, the expression 'travel,
sports and similar bags' means goods ... of a kind
designed for carrying clothing and other personal
effects during travel, including backpacks and shopping
bags of this heading..." [emphasis added].
As set forth above, the common definition of a backpack is an
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article that is designed to carry food and equipment. As
backpacks are eo nomine provided for in heading 4202, HTSUSA, it
may logically be inferred that containers which transport food
are included within the purview of heading 4202, HTSUSA, and that
food is considered a "personal effect" for purposes of
classification in this heading.
You also contend that cooler-bags are not similar to
backpacks because "a backpack can never be used to carry any food
requiring refrigeration." While this may be true, it has no
bearing on the issue before us. Customs' premise is that a
cooler-bag is similar to a backpack inasmuch as they both
transport food (whether perishable or not) during travel. No
further analogy between backpacks and the cooler-bag at issue was
intended.
You correctly state that there is no definition of the term
"personal effects" within the tariff schedule. Citing Sturm,
Customs Law and Administration, page 49, you reason that as there
is no tariff definition, such a term must be construed in
accordance with its common meaning. In order to establish the
common meaning of this term, you cite several lexicographic
sources, including Blacks Law Dictionary 5th Edition. These
definitions suggest that the term "personal effects" usually
connotes objects to which an individual has some sort of intimate
or personal relation. While we agree that this is one acceptable
interpretation of this term, it is not the common meaning of the
term for purposes of the classification of articles under heading
4202 or 3923, HTSUSA. Although the tariff does not provide an
explicit definition of the term "personal effect," it does
provide a clear sense of what is intended by that term. A
comparison of the language of heading 3923 and heading 4202,
HTSUSA, reveals that the former heading provides for goods of a
commercial nature (i.e., containers for packing and shipping bulk
or commercial goods), whereas heading 4202 provides for
containers used to convey personal articles in general (i.e.,
articles belonging to a person). Heading 3923, HTSUSA, provides
for "articles for the conveyance or packing of goods, of
plastics." Enumerated among that heading's exemplars are such
articles as boxes, cases, crates, sacks, bags, carboys, bottles,
flasks, spools, cops, bobbins, stoppers, lids, caps, other
closures and similar articles. It is clear that this heading
provides for cases and containers of bulk goods and commercial
goods and not personal items. Conversely, heading 4202, HTSUSA,
provides for a variety of containers ranging from luggage to
sports and travel bags, to fitted cases, and assorted similar
articles. Its scope extends to various containers that are used
to store and/or transport the belongings of an individual, as
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opposed to bulk goods or commercial goods. It is too restrictive
to interpret the term "personal effects" for purposes of
classification within heading 4202, HTSUSA, as pertaining only to
objects to which an individual has an "intimate" relation. That
standard is too subjective. Similarly, for purposes of
classifying goods under the HTSUSA, the legal definition of
"personal effects," as set forth in Blacks Law Dictionary, is too
narrow; it is in testamentary terms and has no bearing on the
meaning of this term for classification purposes. The key
distinction is that heading 3923, HTSUSA, provides for more
industrial or commercial type containers intended to transport
bulk or commercial articles while heading 4202, HTSUSA, provides
for, in part, containers designed to transport the assorted
personal belongings of an individual whether it be food,
clothing, documents, tools, etc... . Food is therefore within
the realm of "personal effects" that are transportable by the
containers of heading 4202, HTSUSA. (We note that heading 4202,
HTSUSA, is not limited in scope to containers used to convey or
transport goods; this heading also provides for containers which
store and display goods. See HRL 951028, dated March 3, 1993
[jewelery boxes], and HRL 952451, dated December 23, 1992
[denture storage case]).
Even assuming, arguendo, that food is not deemed a "personal
effect," classification of the cooler-bag at issue would still be
appropriate within heading 4202, HTSUSA, as a container similar
to luggage. There is no requirement that the containers
enumerated in the first part of heading 4202, HTSUSA, be for the
transport of "personal effects"; this prerequisite exists only
for travel, sports and similar bags, as mandated by U.S.
Additional Note 1 to Chapter 42. Customs has previously held
that containers for the transport of food (i.e., lunchboxes) were
properly classifiable in heading 4202, HTSUSA, as containers
similar to luggage. See HRL 087281, dated October 29, 1990. In
that ruling this office held:
"[W]hile the lunchbox allows for short-term storage and
protection of food and beverages, it is designed
primarily for the convenience of the traveler.
Consequently, it is more properly classifiable as a
similar container of heading 4202."
The cooler-bag at issue is similar to a lunchbox in that both are
articles used to carry food, and are easily transportable for the
convenience of the user. Since the function of the cooler-bag is
to carry and store food, it is ejusdem generis with the
containers of heading 4202 and consequently is excluded from
headings 3923 and 3924 by virtue of Chapter Note 2(h) of Chapter
39. 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].
Your fourth argument is that Customs allegedly failed to
consider the "essential characteristic" of the cooler-bag (i.e.,
its use in storing and preserving perishable food and maintenance
of refrigerated temperatures) when classifying the subject
merchandise. When classifying merchandise under the tariff
schedule, pursuant to GRI 3, the issue of "essential character"
only arises when there are two or more competing headings which
equally merit consideration. There is only one heading which
provides for the subject merchandise in the instant case; as set
forth above, heading 4202, HTSUSA, provides for containers
similar to the cooler-bags at issue which are used
during travel for the transport of food. Chapter Note 2(h) to
Chapter 39 excludes containers of heading 4202 from Chapter 39.
There is no mutually exclusive corollary in Chapter 42.
Accordingly, the cooler-bags at issue cannot be classified in
Chapter 39 and the issue of "essential character" is moot as
there is only one applicable heading for the classification of
these articles.
Even if an analysis of the subject merchandise's essential
character were relevant, this office is not of the opinion that
it is the insulation which imparts this attribute. While we
recognize that insulation may play an important role in the use
of this article, the fact that it will maintain perishable foods
longer than an uninsulated container is not determinative of
classification. There is no provision in the current tariff
schedule which specifically provides for insulated food
containers (other than thermoses and refrigerators). The dominant
characteristic of the subject article is that the cooler-bag is
transportable. Were transportability not required, perishable
food would be stored in a refrigerator. There is no doubt that
food contained in the cooler-bag at issue will be moved, whether
it is merely from kitchen to backyard or far greater distances.
Not all food that is transported will be perishable. It is on
this basis that Customs deems the transportability of the subject
merchandise, for the convenience of the user, as imparting the
motivating impetus for the purchase of this article.
Accordingly, classification is based on the article's ability to
transport food during travel and not on the fact that the
container can maintain food at regulated temperatures.
You direct our attention to the Explanatory Notes (EN) to
heading 9403, HTSUSA, which specifically exclude from this
heading (a) "travelling chests, trunks and the like..." but in
subparagraph (h) specifically include within said heading "ice-
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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 fiber, cork, wool, etc." You state
that "the difference in the treatment of the insulated articles
as compared to the non-insulated articles adds credence to the
removal of the imported articles from consideration under heading
42." Heading 9403, HTSUSA, provides for "other furniture and
parts thereof." Whether a distinction between insulated and non-
insulated articles exists for purposes of classification within
this heading has no bearing on whether insulated articles are
precluded from classification in heading 4202, HTSUSA. The
Explanatory Notes are heading specific and any particulars set
forth therein are not universally applicable. GRI 1 states that
for legal purposes, classification shall be determined according
to the terms of the pertinent headings. In the instant case, we
are not bound to consider the EN to heading 9403, HTSUSA, as that
heading provides for "other furniture" and is not pertinent to
the classification issues in the case at hand.
And lastly, we wish to stress that under the Tariff
Schedules of the United States (TSUSA), the Court in Sports
Graphics, Inc. v. United States, 806 F. Supp. 268 (CIT 1992),
held that soft-sided cooler-bags were classifiable under item
number 772. This heading provided for articles chiefly used for
preparing, serving, or storing food or beverages. This provision
was not carried over into the HTSUSA and no longer exists under
the current terms of the tariff schedule.
HOLDING:
HRL 953458 is affirmed.
The soft-sided cooler-bag at issue is classifiable under
subheading 4202.92.3030, HTSUSA, which provides for, in pertinent
part, 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 categories may be
subdivided into parts. If so, the visa and quota requirements
applicable to the subject merchandise may be affected. Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available we
suggest your client check, close to the time of shipment, the
Status Report on Current Import Quotas (Restraint Levels), an
internal issuance of the U.S. Customs Service which is updated
weekly and is available for inspection at the local Customs
office.
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Due to the nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint
(quota/visa) categories, your client should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director