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HQ 962023




September 25, 1998

CLA-2 RR:CR:TE 962023 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Mr. Floyd Sirico
Rogers & Brown Custom Brokers, Inc.
Post Office Box 20160
Charleston, South Carolina 29413-0160

RE: Portable, Soft-Sided, Insulated Cooler Bags; SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997); Cooler Bags with an Outer Surface of Fabric-backed, Compact Plastics

Dear Mr. Sirico:

This letter is in response to your request of June 26, 1998, on behalf of your client, Shakespeare Fishing Tackle, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of soft-sided, insulated cooler bags manufactured in China. Samples were submitted with your request.

FACTS:

The two samples differ essentially only in size and in the number of main compartments they possess. The larger bag has two insulated compartments while the smaller bag has only one. Both articles are portable, soft-sided, insulated cooler bags that are primarily designed to store and preserve food and/or beverages.

The larger cooler bag measures approximately 12 inches in width by 7 inches in depth by 10 inches in height. The bag features 2 separate insulated compartments (each with its own zippered closure), a webbed textile shoulder strap, 2 webbed
textile carrying handles, and an exterior front pocket made from an open work knit textile fabric. The outer layer of the bag's bottom and sides is composed of a polyester fiber woven fabric that has been coated, covered or laminated with a non-cellular (compact) plastic said to be polyvinyl chloride (PVC). The plastic surface of this outer layer faces outward and is embossed to simulate the appearance of woven fabric. The outer layer of the bag's top flap is composed of a nylon woven fabric that is backed with PVC plastic. The fabric surface of the top flap faces outward. The middle layer of the bag is composed of plastic foam which measures approximately 3/8 inch in thickness and which functions to both insulate and cushion contents. The inner layer of the bag is a waterproof lining composed of a sheet of PVC plastic.

The smaller cooler bag measures approximately 12 inches in width by 6 inches in depth by 6 inches in height. Although it has only one main insulated compartment, it's composition and features are otherwise similar in all material respects to those of the larger bag.

ISSUE:

Whether the portable, soft-sided, insulated cooler bags are classified under heading 4202, HTSUS, as containers used to organize, store, protect and carry various items; or are classified under heading 6307, HTSUS, as other made up (textile) articles with outer surface of fabric-backed compact 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 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), by which the principles of the CAFC's decision were expressly extended to portable, hard or soft-sided, insulated coolers and similar insulated containers with outer surface of plastics or with outer surface of textile materials (the latter of which are classified in subheading 6307.90.9905, 6307.90.9907, or 6307.90.9909, HTSUSA, depending upon whether the article's outer surface is composed of cotton, man-made fibers, or other textile materials, respectively); and to such articles that feature exterior or interior pockets, webbing, straps, etc., provided that the additional features do not alter the container's primary purpose to store and preserve food and/or beverages.

On September 10, 1998, an additional instruction was issued to Customs field personnel (and approved for dissemination to members of the importing community), by which the principles of the CAFC's decision were expressly extended to foodstuff-related, insulated containers whose exterior layer is composed of a textile fabric that is coated, covered or laminated with compact plastics, with the plastic surface of the layer facing outward. Such containers are classified in subheading 6307.90.9989, HTSUSA, a provision which is currently not subject to quota/visa requirements.

In light of the principles of the SGI decision, the instructions noted above, and the fact that each cooler bag has an outer layer that is essentially composed of fabric-backed compact plastics, the articles are classified in subheading 6307.90.9989, HTSUSA.

HOLDING:

The two portable, soft-sided, insulated cooler bags are classified in subheading 6307.90.9989, HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other." The general column one duty rate is 7 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division


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