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HQ 965104




February 12, 2002

CLA-2 RR:CR:TE 965104 JFS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3923.21.0080, HTSUSA

Port Director
U.S. Customs Service
Los Angeles – Long Beach Seaport
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest with Application for Further Review, Protest Number 2704-01-101030; Insulated Shopping Bags; Prolonged Use; Not Heading 4202

Dear Madam:

This letter is a decision on an Application for Further Review (AFR) of Protest number 2704-01-101030, timely filed on April 19, 2001, by Rode & Qualey, on behalf of KeepCool USA Company (“KeepCool”). The AFR concerns the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two entries of insulated shopping bags entered in 2000.

FACTS:

The insulated shopping bags at issue are constructed of two layers of unbacked, unsupported and unreinforced sheetings of plastics sandwiching a thin layer of cellular plastics. You classified the bags in subheading 4202.92.4500, HTSUSA, which provides, in pertinent part, for travel, sports and similar bags, with an outer surface of plastic sheeting, with a general column one rate of duty of 20 percent ad valorem.

The Protestant claims the bags should be classified in subheading 3923.21.0080, HTSUSA, which provides for: “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of polymers of ethylene, Other: With no single side exceeding 75 mm in length.” The general column one rate of duty is 3 percent ad valorem. Two styles of the bags are the subject of this Protest. The first bag, KeepCool Model #45vfbi, has side panels which measure approximately 18 inches wide by 19 inches tall. The end panels are gussetted, taper from approximately 7 inches at the top to 8 inches wide at the bottom, and are 18 inches tall. The bottom of the bag has an insert and is 8 inches wide and 18 inches long. The Protestant states that the bag has a nominal interior volume of 12 gallons or 45 liters and is capable of holding up to forty-five pounds of food. The bag is FDA approved for food contact.

The second bag, KeepCool Model #34vfbi, is nearly identical in design to Model #45vfbi except it is smaller, having an interior volume of 9 gallons or 34 liters and being designed to hold 35 pounds.

The bags are customized to the order of retailers such as “Sam’s Club” or “Ralph’s” by printing their particular logo on the exterior of the bags. Likewise, the bags may also bear the logos of various food manufacturers, e.g., “Stouffer’s®,” “Tyson®,” and “Cool Whip®.” The printing on the exterior of the bags claims that the bags (1) are reusable; (2) are triple-insulated to keep frozen food purchases frozen for over 2.5 hours; (3) can be used to protect groceries and keep drinks cold; (4) will keep your food frozen all the way home; and (5) are great for picnics, trips to the beach or to the ball game.

Counsel for the protestant states that:

All of the KeepCool Freezer Carriers are constructed from three layers of plastic sheeting, plus molded plastic handles. The inner layer is made from 2.56 mil polyethylene sheeting, the middle layer is an insulating layer of 0.8 mm closed-cell polyethylene foam, and the outer layer consists of metalized 0.47 mil polyester film glued to a 1.77 mil thick polyethylene film.

The Customs Laboratory examined these same styles of bags, as stated in Headquarters Ruling Letter (HQ) 965039, to be published in the Customs Bulletin dated February 20, 2002. The Customs Laboratory determined that the inner layer is constructed of 2.559 mil of polyethylene. The middle layer is constructed of 17.126 mil of foam polyethylene. The outer layer is constructed of 2.087 mil of metalized polyethylene and .256 mil of polyester.

A “mil” is equal to one one thousandth of an inch.

ISSUE:

Whether the insulated shopping bags are not designed for prolonged use and are therefore excluded from classification in heading 4202, HTSUSA.

LAW AND ANALYSIS:

In HQ 965039 (copy attached), Customs stated its position concerning the classification of the same two styles of insulated shopping bags manufactured by KeepCool, Model #45vfbi and Model #34vfbi, that are the subject of this Protest. The Protestant acknowledges that in HQ 965039 it was stated that Model #34vfbi had an interior volume of 8.8 gallons. Therefore, the LAW AND ANALYSIS portion of that ruling is incorporated by reference into this decision.

HOLDING:

The KeepCool bags, Model #45vfbi and Model #34vfbi, are classified under subheading 3923.21.0080, HTSUSA, which provides for: “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of polymers of ethylene, Other: With no single side exceeding 75 mm in length.” The general column one rate of duty is 3% ad valorem.

The protest should be allowed. In accordance with Section 3A (11) (b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no latter than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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