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HQ 960938

November 14, 1998
CLA-2 RR:TC:TE 960938 jb


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.


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.


Whether the subject merchandise is properly classified in heading 4202, HTSUS, or heading 3924, HTSUS?


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.


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.


John Durant, Director
Commercial Rulings Division

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