HQ 960938

November 14, 1998

CLA-2 RR:TC:TE 960938 jb

CATEGORY: Classification

TARIFF NO.: 3924.10.5000

Cindy Shahamat

Schenker International, Inc.

4700 Lima Street

Denver, CO 80239-0945

RE: Request for Reconsideration of PD A88672 and HQ 960184;

insulated casserole dish caddie bag; SGI, Incorporated v.

United States, 122 F.3d 1468, Slip Op. 96-1272, decided

September 5, 1997

Dear Ms. Shahamat:

This is in response to your letter, dated November 3, 1997,

on behalf of your client, Tops of Rockies Marketing, requesting

reconsideration of HQ 960184, dated September 4, 1997, which

classified an insulated casserole dish caddie bag in heading

4202, Harmonized Tariff Schedule of the United States (HTSUS). A

sample was submitted to this office for examination.

FACTS:

In HQ 960184 this office addressed an earlier request

submitted by you for reconsideration of Port Decision (PD)

A88672, dated November 6, 1996, which classified the subject

merchandise in heading 4202, HTSUS. At that time we stated that

we were affirming the holding in PD A88672. That is, the proper

classification of the subject merchandise was heading 4202,

HTSUS. You maintain that the proper classification for this

merchandise is heading 3924, HTSUS.

The merchandise was described in HQ 960184 as an insulated

casserole dish caddie bag, measuring approximately 3 inches by 10

inches by 16 inches, with an outer surface of PVC plastic

sheeting. The bag features two interior pouch pockets with hook

and loop type fasteners and two webbed textile strap handles.

The bag is stated to transport and serve food and features a

pouch at the bottom of the caddie for the storage of a removable

cold pack.

We note that although the bag that was the subject of HQ

960184 was described as featuring two interior pockets, the bag

submitted with your present request only features one interior

pocket.

ISSUE:

Whether the subject merchandise is properly classified in

heading 4202, HTSUS, or heading 3924, HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed

by the General Rules of Interpretation (GRI\'s). GRI 1 requires

that classification be determined according to the terms of the

headings and any relative section or chapter notes. Where goods

cannot be classified solely on the basis of GRI 1, the remaining

GRI\'s will be applied, in the order of their appearance.

Prior to the decision in SGI, Incorporated v. United States,

there were two plausible classifications for this merchandise:

heading 4202, HTSUS, which provides for, among other things,

traveling bags and similar articles, of textile materials, of

vulcanized fiber or of paperboard, or wholly or mainly covered

with such materials or with paper, and heading 3924, HTSUS, which

provides for, among other things, tableware, kitchenware, other

household articles and toilet articles, of plastic. As such, in

HQ 960184, this office determined in accordance with applicable

administrative precedent that the proper classification for this

merchandise was heading 4202, HTSUS.

However, on September 5, 1997, the Court of Appeals for the

Federal Circuit (CAFC), in SGI, Incorporated v. United States,

found that the classification for this merchandise is in heading

3924, HTSUS. The CAFC stated, \"we again must focus on whether

food or beverages are involved in the eo nomine exemplars set

forth in the provisions in the HTSUS at issue.\" Finding that the
exemplars of heading 4202 did not include

containers that organize, store, protect, or carry food or

beverages, the CAFC held that the appropriate classification for

the coolers was subheading 3924.10.50, HTSUSA, 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 heading 3924 exemplars (specifically, those

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.\"

As such, by operation of law, the Court\'s determination

effected a change in the classification of the subject merchandise

from heading 4202, HTSUS, to heading 3924, HTSUS. We note that the

exemplar containers of heading 3924, HTSUS, cited above are used as

dispensers and contain only specific foodstuffs, not additional

\"various items\" which are designed to organize, store, protect, and

carry. Thus, the subject merchandise, which is similarly designed

to carry food (substantiated by its insulation properties and a

pouch specifically designed to carry a removable cold pack), is per

the Court\'s decision, appropriately classified in heading 3924,

HTSUS.

A copy of this ruling in addition to HQ 960184 should be

presented at the port with the subject merchandise at the time of

entry.

In accordance with section 152.16(e), Customs Regulations (19

CFR 152.16(e)), unless the Customs Service directs otherwise, the

principles of any court decision adverse to the Government will be

applied to unliquidated entries and protested entries which have

not been denied in whole or in part and in which the same issue is

involved as soon as the time within which an application for a

rehearing or review may be filed has expired without such

application having been made. No application for rehearing or

review has been made and none will be made. However, the Customs

Service has issued field instructions regarding this matter. A

copy is enclosed for you information.

HOLDING:

SGI, Incorporated v. United States, revoked PD A88672 and HQ

960184 by operation of law. The proper classification for this

merchandise is now in subheading 3924.10.5000, HTSUSA, which

provides for tableware, kitchenware, other household articles and

toilet articles, of plastics: tableware and kitchenware: other.

The applicable rate of duty is 3.4 percent ad valorem.

Sincerely,

John Durant, Director

Commercial Rulings Division