CLA-2 RR:CR:TE 961515 GGD
Ms. Charlotte Gromberg
Alrod International, Inc.
500 North Nash Street
El Segundo, California 90245
RE: Portable, Soft-Sided, PVC, Insulated Lunch Bag; SGI,
Incorporated v. United States, 122 F.3d 1468 (Fed. Cir.
1997); Outer Surface of Plastics
Dear Ms. Gromberg:
This letter is in response to your request of February 10,
1998, on behalf of your client, Lisa Frank, Inc., concerning the
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of a soft-sided, polyvinyl chloride
(PVC), insulated lunch bag manufactured in China. A sample was
submitted with your request.
FACTS:
The sample, identified as item number P1304, is a child's
portable, soft-sided, insulated bag. The bag has an outer
surface of PVC plastics and an inner lining that is composed of
plastic sheeting. There is a thin 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 5-1/2 inches in depth. The bag has a main compartment (which
measures approximately 4-3/4 inches in height by 7-1/2 inches in
width by 5 inches in depth) with a zippered closure that is
similar in design to that of a bowling ball bag. The smaller,
sandwich-sized compartment is below the larger compartment and
has a zippered closure on three sides. The bag also has two
nylon web carrying straps.
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Although described as a "cooler," the bag is not well-suited
to contain melting ice, and it leaks at the seams when water is
added. Marketing information was submitted, however, which
suggests that the bag is primarily designed to store and preserve
food and/or beverages. In part, the literature states that:
"This lunch tote is really fun - you can have lunch with all of
your favorite Lisa Frank characters! There's even a neat little
compartment on the bottom that can hold a sandwich or an ice
pack." The bag's exterior is imprinted with colorful designs and
pictures of small animals and toys.
ISSUE:
Whether the portable, soft-sided, PVC, insulated bag is
classified under heading 4202, HTSUS, as a container used to
organize, store, protect and carry various items; or is
classified under heading 3924, HTSUS, as a container 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
(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
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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. The instructions stated that lunch boxes, if not
insulated, remain classified under heading 4202.
In light of the principles of the SGI decision and the
instructions noted above, we find that the subject lunch bag with
outer surface of plastics is an insulated containers whose
primary purpose is to store and preserve food and/or beverages.
As such, it is similar to the soft-sided insulated cooler bags
that were subject to the decision by the CAFC in SGI. The bag is
therefore classified in subheading 3924.10.50, HTSUS.
HOLDING:
The portable, soft-sided, PVC, insulated lunch bag
identified by item no. P1304 is classified in subheading
3924.10.50, HTSUS, the provision for "Tableware, 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