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HQ 961357

June 18, 1998

CLA-2 RR:CR:TE 961357 GGD


TARIFF NO.: 3924.10.50

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.


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.

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.


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.


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), 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.


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,
kitchenware, other household articles...of plastics: Tableware and kitchenware: Other." The general column one duty rate is 3.4 percent ad valorem.


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