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HQ 968119

May 17, 2006

CLA-2: RR:CTF:TCM 968119


Ms. Mary E. Keller
Attorney in Fact
Excel Global Logistics Inc.
2151 Southpark Drive
Suite 1
Hebron, KY 41048

RE: Request for Binding Ruling; Classification; Ross Products Division, Abbott Laboratories v. United States, Summons No. 05-00323; Insulated Food or Beverage Bag; Travel Bag

Dear Ms. Keller:

This is in response to your request on behalf of your client, YWC Mid America, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated of certain soft-sided plastic bags. Samples have been provided with the request.


The submitted samples are identified as style 22628, which is a smaller bag (approximately 7.5 inches wide x 9.5 inches tall), and style 22405, which is a larger bag (approximately 13.5 inches wide x 11.5 inches tall). Each bag is manufactured and assembled of the same materials and by the same process. The bags consist of individual panels of an exterior of calendared Polyvinyl Chloride (PVC) sheeting, a middle layer of open cell foamed plastic, and an inner layer of PVC sheeting. The outer layer is 0.008 inches thick. The middle layer of foamed open cell plastics is 0.08 inches and the inner layer is 0.006 inches thick. The panels are individually sewn together and joined on the exterior with plastic piping. The interior has PVC binding. The construction is not one piece but has been formed by sewing together multiple PVC panels and foam. Each bag has one storage area and one wall pocket. In addition, each bag is designed to contain one bottle secured within an elastic bottle holder sewn on the inside of the storage area. The bags have a fold down and removable bottom stiffener and a front flap with nylon coil zipper closure. The bags are presented with freezer gel packs inserted into the wall pocket.


What is the proper classification for the merchandise?


The issue presented in the instant binding ruling request, the classification under heading 4202, HTSUSA, of insulated bags for temporary storage of food, beverages, and related products, is currently pending in the Court of International Trade in the case of Ross Products Division, Abbott Laboratories v. United States, Summons No. 05-00323.

Part V of the Customs Protest/Petition Processing Handbook explains the procedures to be followed when a protest is filed that involves issues which are pending in the Court of International Trade. It reads in pertinent part:      


Lead protests and associated protests should only be suspended if there is a test case before the Court of International Trade (CIT), an AFR has been granted, or an internal advice request is before Headquarters on the exact same issue.

If after review of a protest where a test summons pending before the CIT is cited as the basis for the protest, the review team determines it is a valid claim, the entry unit must enter the test summons number into the "Test Summons No." data field, enter "S" for suspension into the "Protest Status" field, the date in the "Date" field, and enter process status code "SU2" (PMAC).

Moreover, Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Section 177.7(b) reads in pertinent part:

No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit or any court of appeal there from.

In light of the prohibition set out in Part V of the Customs Protest/Petition Processing Handbook and in 19 C.F.R. §177.7(b), we are unable to rule on the request for a binding ruling at this time.


In accordance with section V of the Customs Protest/Petition Processing Handbook, we are administratively closing our file and referring the matter back to you pending the court’s determination in the Ross Products Division, Abbott Laboratories case. At that time, if the Court’s decision fails to definitively resolve the issue of the classification of the articles herein, i.e., questions remain regarding application of the court’s decision to the instant merchandise, then your client may forward the binding ruling request to this office for resolution at that time.


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