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HQ 964574

August 6, 2002

CLA-2 RR:CR:TE 964574 ASM


TARIFF NO.: 6307.90.9889

Charles H. Bayar, Esq.
P.O. Box 4527, Grand Central Station
New York, NY 10163

RE: Reconsideration of NY F88184; Tariff classification of insulated cooler bags; Woven fabric panel coated, covered or laminated with noncellular plastic; Plastic coating faces outward; SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997)

Dear Mr. Bayar:

This is in response to a letter, dated September 30, 2000, on behalf of your client, WOK Trading L.L.C. (Importer), and pursuant to 19 C.F.R. section 177.2(B)(2)(ii)(C), requesting review of New York Ruling Letter (NY) F88184, dated July 18, 2000, in which cooler bags were classified under subheading 6307.90.9989, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination.


In NY F88184, dated July 18, 2000, the subject merchandise was classified in subheading 6307.90.9989, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other, Other: Other.” Effective January 2002, this provision is enumerated as 6307.90.9889. The provision is dutiable under the general column one rate at 7 percent ad valorem. You disagree with this classification and assert that the merchandise should be classified in subheading 3924.10.50, HTSUSA.

The subject merchandise is a soft-sided cooler bag used to maintain food or beverages at a desired temperature over a period of time. The body of the cooler bag is comprised of three layers of materials: the outermost layer is a plastic coated woven fabric with the plastic coating facing outward, the middle layer consists of a thin layer of foam, and reflective plastic sheeting makes up the inside lining. However, a piece of cardboard comprises the middle layer on the front flap of the cooler and the inside of this flap is constructed with a plastic erasable marking board. The outermost woven fabric panels have been coated, covered or laminated with a layer of plastic material. This plastic has been determined to be noncellular. The plastic surface of these panels faces outward. The bottom panel of the cooler is made of a heavier woven fabric panel which has also been coated, covered or laminated with a layer of plastic material. This plastic coating has also been determined to be noncellular. The plastic surface of the bottom panel faces inward and the woven textile fabric is quite substantial.

The middle layer of this product is a layer of plastic foam which functions as an insulating and cushioning material. The inside lining, which forms the interior of the cooler bag, is made of plastic reflective sheeting material. The cooler bag’s main compartment is held closed with strips of hook-and-loop fastener. It features a top flap which has a cardboard insert as a stiffener. The top flap is secured with a web fabric strap with strips similar to the above fastener. On the inside of the top flap are a wipeboard and a sleeve which houses a marker pen. Depicted on the exterior side is a comical dog with a pair of plastic rotating eyeballs. The exterior backside features a pocket constructed of open-worked mesh textile fabric covered with plastic material. Sewn onto the top of the bag is a textile carry handle. The bag measures approximately ten inches tall and 81/2 inches across, and opens to approximately six inches.


What is the proper classification for the merchandise?


Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level.

While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In view of the fact that one of the component materials of the subject item is a combination of textile and plastic, we must first assess whether the material is classifiable as a textile or plastic under the HTSUSA. On this point, we begin by noting Chapter 39, HTSUSA, which covers plastics and articles thereof. Specifically, the EN to chapter 39 states: “the classification of plastics and textile combinations is essentially governed by Note 1(h) to Section XI, Note 3 to Chapter 56 and Note 2 to Chapter 59.”

Note 1(h) to section XI (which covers textiles and textile articles), HTSUSA, states:

This section does not cover:

Woven, knitted or crocheted fabrics, felt or nonwovens, impregnated, coated, covered or laminated with plastics, or articles thereof, of chapter 39;

Chapter 59, HTSUSA, includes impregnated, coated, covered or laminated textile fabrics. In relevant part, Note 2(a) to Chapter 59, HTSUSA, states that heading 5903 applies to :

Textile fabrics, impregnated, coated, covered or laminated with plastics, whatever the weight per square meter and whatever the nature of the plastic material (compact or cellular), other than:

(5) Plates, sheets or strip of cellular plastics, combined with textile fabric where the textile fabric is present merely for reinforcing purposes (chapter 39);

As previously noted, the plastics with which the textile fabric is coated, covered or laminated are noncellular plastics. The plastic-coated textile material, which comprises the outer layer of all sides of the bag, is therefore a textile material to which heading 5903, HTSUSA, applies. The material would not be classifiable in any provision under chapter 39, HTSUSA, whether or not the textile fabric is present for mere reinforcement.

The classification of certain portable, soft-sided, insulated cooler bags with outer surface only of plastics was 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 held that the appropriate classification for the bags was subheading 3924.10.50, HTSUSA, the provision for “Tableware, kitchenware, other household articles of plastics: Tableware and kitchenware: Other.”

This office concluded that the CAFC’s decision in SGI should be implemented and instructions were issued to Customs field personnel (and approved for dissemination to the importing community) on March 18, 1998, and September 10, 1998, by which the decision’s principles were expressly extended to portable, soft-sided insulated containers (whose primary purpose was to store and preserve food and/or beverages) with outer surface of plastics or of textile materials (these being classified in subheadings 6307.90.9905, 6307.90.9907, or 6307.90.9909, HTSUSA, depending on whether the outer surface was composed of cotton, man-made fibers, or other textile materials, respectively). It was further determined that insulated containers whose exterior layer was composed of a textile fabric coated, covered or laminated with compact (noncellular) plastics, with the plastic surface of the layer facing outward were classified in subheading 6307.90.9989, HTSUSA. In this case, all of the cooler bag’s sides are composed of just such an exterior layer. On all but one of the bag’s sides, the plastic surface of the exterior layer faces outward. We therefore find that the soft-sided cooler bag subject to NY F88184 was properly classified in subheading 6307.90.9989, HTSUSA.

As you should be aware, however, pursuant to Presidential Proclamation 7515 of December 18, 2001, effective January 10, 2002, the term “insulated food or beverage bags” was included in the text of heading 4202, HTS, immediately following the term “traveling bags.” This change requires that all insulated food or beverage bags and similar containers, entered on or after January 10, 2002, be classified only under heading 4202. A new eighth paragraph in the Explanatory Notes to heading 42.02 (page 661), states: “The expression ‘insulated food or beverage bags’ covers reusable insulated bags used to maintain the temperature of foods and beverages during transport or temporary storage.” Newly created subheadings 4202.92.05 and 4202.92.10, HTSUS, provide specifically for “Insulated food or beverage bags” (“With outer surface of textile materials” and with outer surface of “Other” materials, respectively). The above changes stem from actions taken by the ITC, beginning with the institution of Investigation No. 1205-5 on November 18, 1999, proposing changes to the HTS due to the work of the WCO and HSC to update and clarify tariff nomenclature; and culminating with the amendment of the HTSUS, pursuant to
statutory or delegated authority, to provide eo nomine for “insulated food or beverage bags” in the new tariff breakouts under subheading 4202.92. Since the publication and issuance requirements of 19 U.S.C. 1625 do not apply when a position is modified, revoked or otherwise materially affected by operation of law (in this case, the amendment of the HTSUS by the ITC), Customs rulings in which insulated food or beverage bags, or similar containers, are classified under headings other than 4202 (e.g., headings 3924, 6307, 3926, etc), will not be revoked or modified by publication of notices in the Customs Bulletin. Effective January 10, 2002, all such rulings inconsistent with the intent of the amendments to heading 4202 and its statutory provisions, are revoked or modified by operation of law. Similarly, any inconsistent instructions issued to implement the CAFC’s decision in SGI, Inc. v. United States, and disseminated to Customs and the importing community by hard copy, or electronically on various bulletin boards, web sites, etc., are superceded, effective January 10, 2002.


NY F88184, issued July 18, 2000, is hereby affirmed.

The portable, soft-sided, insulated cooler bag subject to NY F88184 was properly classified in subheading 6307.90.9989, HTSUSA, the provision for “Other made up [textile] articles, including dress patterns: Other: Other: Other, Other: Other.” The general column one duty rate is 7 percent ad valorem.


Myles B. Harmon, Acting Director
Commercial Rulings Division

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