Portable, Soft-Sided, Insulated Cooler Bags; SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997); Cooler bag with exterior layer composed of a textile fabric combined with plastic with the plastic surface facing outward

HQ 962120 April 7, 1999 CLA-2 RR:CR:TE 962120 SS CATEGORY: Classification TARIFF NO.: 6307.90.9989 Bernard D. Liberati Morris Friedman & Co. 325 Chestnut Street, Suite 415 Philadelphia, PA 19106-3883 Re: Portable, Soft-Sided, Insulated Cooler Bags; SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997); Cooler bag with exterior layer composed of a textile fabric combined with plastic with the plastic surface facing outward Dear Mr. Liberati: This letter is in response to your request of July 27, 1998, on behalf of your client K’NEX Industries, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a portable, soft-sided, insulated cooler bag imported from Hong Kong. A sample was submitted with your request. FACTS: The submitted sample is a cooler bag, described as an Arctic Zone® collapsible insulated lunch bag, which is constructed of three distinct layers of material. The exterior or outer layer consists of a man-made fiber woven fabric which has been coated, covered or laminated with a layer of compact plastic. The plastic surface has been embossed to simulate the look of a textile woven fabric and the plastic surface of this material faces outward. The middle layer of the product is a thin layer of plastic foam (3/8 inch thick) which functions as an insulating and cushioning material. The final layer which forms the interior of the cooler bag is made from a plastic sheeting. When collapsed, the cooler bag is rectangular in shape and measures approximately 10.5 inches high by 7 inches wide by 2.5 inches deep. When expanded, the cooler bag resembles a traditional triangle-shaped paper lunch bag. The cooler bag features a woven man-made fiber carrying strap and a textile hook and loop closure at the top of the bag to facilitate sealing the bag. The submitted cooler bag is said to be designed chiefly for preserving and carrying a school lunch where the maintenance of temperature is required to protect the quality of the contents.  ISSUE: What is the proper classification for the portable, soft-sided, insulated cooler bag whose exterior layer is composed of a textile fabric combined with plastic with the plastic surface facing outward? LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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 September 10, 1998 (and approved for dissemination to members of the importing community), which expressly extended the principles of the CAFC’s decision to portable, soft-sided, insulated coolers and similar insulated containers (whose primary purpose is to store and preserve food and/or beverages), with outer surfaces composed in whole or in part of textile materials. Such articles are classified in subheading 6307.90.9905, 6307.90.9907, or 6307.90.9909, HTSUSA, depending on whether the outer surface is composed of cotton, man-made fibers, or other textile materials, respectively. The instructions issued on September 10, 1998, expressly extended the principles of the CAFC’s decision to insulated containers whose exterior layer is composed of textile fabric combined with plastic with the plastic surface facing outward (i.e., an exterior layer of textile fabric combined with plastic with an “outer surface” of plastic). 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 the subject cooler bags have an outer layer that is composed of textile fabric combined with plastic with the plastic surface facing outward, the collapsible insulated lunch bag is classified in subheading 6307.90.9989, HTSUSA. We note that Customs has previously classified similar cooler bags under subheading 6307.90.9989, HTSUSA. See Headquarters Ruling Letter (“HRL”) 961940, dated September 30, 1998; HRL 962023, dated September 25, 1998; HRL 961944, dated September 25, 1998; and HRL 961712, dated November 12, 1998. HOLDING: The portable soft-sided, insulated cooler bag described as a collapsible insulated lunch bag is 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 seven percent (7%) ad valorem. Sincerely, John Durant, Director Commercial Rulings Division