CLA-2 RR:CR:TE 961357 GGD
Joel K. Simon, Esquire
Serko & Simon
1 World Trade Center, Suite 3371
New York, New York 10048
RE: Portable, Soft-Sided, Vinyl, Insulated Lunch Bags; SGI,
Incorporated v. United States, 122 F.3d 1468 (Fed. Cir.
1997); Outer Surface of Plastics
Dear Mr. Simon:
This letter is in response to your request of January 27,
1998, on behalf of your client, La Rue Distributors, Inc.,
concerning the classification under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) of soft-sided,
vinyl, insulated lunch bags manufactured in Hong Kong. Samples
were submitted with your request.
FACTS:
The two samples, described as "cooler bags" and identified
as styles 2605COW and 2679COW, are portable, soft-sided,
insulated bags which are primarily designed to store and preserve
food and/or beverages. Both bags are imprinted with designs and
logos related to the National Football League, the Dallas
Cowboys, and ABC's television program "Monday Night Football."
Although described as "cooler bags," the bags are apparently ill-suited to contain melting ice, and they promptly leak at the
seams when water is added.
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Style 2605COW measures approximately 10-1/2 inches in height
by 7 inches in width by 4-1/4 inches in depth (with gussets fully
expanded). The bag has a nylon web carrying strap and a hook and
loop fabric fastener which secures the top flap. The bag's outer
surface and its inner lining are composed of vinyl. Between
these two layers is a layer of plastic foam insulation material.
Style 2679COW also has an outer surface and inner lining
composed of vinyl, with a layer of plastic foam insulation
between the two layers. The bag measures approximately 6-1/2
inches in height by 8 inches in width by 6 inches in depth (fully
expanded). This bag has a main compartment (which measures
approximately 6-1/4 inches in height by 7-1/2 inches in width by
3-3/4 inches in depth) and a smaller, sandwich-sized compartment.
Both compartments have zippered closures and the bag also has a
nylon web carrying strap.
ISSUE:
Whether the portable, soft-sided, vinyl, insulated bags are
classified under heading 4202, HTSUS, as containers used to
organize, store, protect and carry various items; or are
classified under heading 3924, HTSUS, as containers with outer
surface of plastics to which the principles of the decision in
SGI, Incorporated v. United States apply.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRI). GRI 1 provides that
the classification of goods shall be determined 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 headings and
legal notes do not otherwise require, the remaining GRI may then
be applied. The Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRI.
The classification of certain portable, soft-sided,
insulated cooler bags with outer surface of plastics, was
recently examined by the Court of Appeals for the Federal Circuit
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(CAFC) in SGI, Incorporated v. United States, 122 F.3d 1468 (Fed.
Cir. 1997). The CAFC focused on whether food or beverages were
involved with the eo nomine exemplars set forth in the tariff
provisions at issue and, without discussion of heading 4202
exemplars that organize, store, protect, and/or carry food or
beverages, the CAFC held that the appropriate classification for
the cooler bags was subheading 3924.10.50, HTSUS, the provision
for "Tableware, kitchenware, other household articles...of
plastics: Tableware and kitchenware: Other." The Court stated
that this classification "does encompass exemplars that are
ejusdem generis with the coolers because their purpose is to
contain food and beverages." The exemplars (specifically
enumerated in subheading 3924.10.10) which the Court noted in
particular were the "various household containers for foodstuffs
such as salt, pepper, mustard, and ketchup dispensers and serving
pieces for food."
This office concluded that the CAFC's decision in SGI should
be implemented. Instructions were issued to Customs field
personnel on March 18, 1998 (and approved for dissemination to
members of the importing community), which expressly extended the
principles of the CAFC's decision to portable, hard or soft-sided, insulated coolers and similar insulated containers with
outer surface of plastics or with outer surfaces composed in
whole or in part of textile materials (the latter of which are
classified in subheading 6307.90.99, HTSUS); and to such articles
that feature exterior or interior pockets, webbing, straps, etc.,
for the purpose of containing items in addition to foodstuffs,
provided that the additional features do not alter the
container's primary purpose to store and preserve food and/or
beverages.
In light of the principles of the SGI decision and the
instructions noted above, we find that since the subject lunch
bags with outer surfaces of plastics are insulated containers
whose primary purpose is to store and preserve food and/or
beverages, they are similar to the soft-sided insulated cooler
bags that were subject to the decision by the CAFC in SGI. The
bags are therefore classified in subheading 3924.10.50, HTSUS.
HOLDING:
The portable, soft-sided, vinyl, insulated lunch bags
identified by styles 2605COW and 2679COW are classified in
subheading 3924.10.50, HTSUS, the provision for "Tableware,
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kitchenware, other household articles...of plastics: Tableware
and kitchenware: Other." The general column one duty rate is 3.4
percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division