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.

- 2 -

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

- 3 -

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:

- 4 -

(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

- 5 -

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.

- 6 -

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