CLA-2 CO:R:C:T 951029 jb

District Director
U.S. Customs Service
49 Pavilion Avenue
Providence, RI 02905-1521

RE: Decision on Application for Further Review of Protest No. XXXXXXXXXXXX; lunch box not tableware, kitchenware, other household articles and toilet articles, plastic heading 3924, HTSUSA; appropriate heading, trunks, suitcases, school satchels and similar items, heading 4202, HTSUSA.

Dear Sir:

This is a decision on application for further review of a protest timely filed on behalf of Oceanstate Jobbers, on April 22, 1991, against your decision regarding the classification of lunch boxes. All entries were liquidated on April 19, 1991. A sample was provided and is being returned under separate cover.


The sample is made from injection molded plastics, and consists of two components. One is a drinking flask with a handle incorporated onto its side. The flask measures 3-1/4 inches in diameter and is 7-1/4 inches long. The bottom portion is an open topped container measuring approximately 7-1/4 inches by 3 inches, with a depth of 4-1/4 inches. There are semicircular cutouts in each side panel. The flask rests on these cutouts. Four latches, two on each side of the bottom container, hook into slots on the handle portion of the flask. When the two components are latched together, the complete article resembles a lunch box, with the flask forming the "lid" of the box.

The lunch boxes were originally entered under heading 3924, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for tableware, kitchenware, other household articles and toilet articles of plastic. Customs classified the merchandise under heading 4202, HTSUSA, which provides for trunks, suitcases, vanity cases, attache cases, briefcases and similar articles.

The protestant contends that the sample lunch box is distinguishable from other lunch boxes ruled to be classifiable in heading 4202, and instead is a "luncheon box", such as listed in the Explanatory Notes for heading 3924, which "gives the impression of a make believe lunch box (toy) to be used in the house." As an alternative, the protestant suggests classification under heading 9503, HTSUSA, which provides for other toys.


Is the submitted sample properly classifiable under heading 3924, HTSUSA, which provides for tableware, kitchenware, and other household articles of plastic, or heading 4202, HTSUSA, which provides for trunks, suitcases, vanity cases, attache cases, briefcases and similar articles?


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 section and chapter notes and, unless otherwise required, according to the remaining GRI's. When goods cannot be classified solely on the basis of GRI 1, the remaining GRI's will be applied, taken in order.

Under HTSUSA, several headings are potentially applicable to the instant merchandise: heading 3924, providing for tableware, kitchenware, other household articles and toilet articles, of plastic; heading 3923, providing for articles for the conveyance or packing of goods, of plastic; heading 9503, providing for other toys; heading 4202, providing for trunks, suitcases, school satchels and similar items. Each heading will be considered in determining the proper classification for the submitted sample.

The protestant brings our attention to heading 3924, HTSUSA, and the provision for tableware, kitchenware, other household articles and toilet articles, of plastic. Also noted is the example "luncheon box" which appears in the Explanatory Notes to heading 3924. In HQ 087281 (October 29, 1990), which involved similar merchandise, the term household was emphasized as a requirement for application of heading 3924, HTSUSA. "Household" is defined in Webster's Ninth New Collegiate Dictionary 584 (1991), as 1: of or relating to a household : domestic.

"Domestic", as defined by The American College Dictionary 358 (1970), provides:

1: of or pertaining to the home, the household, or household affairs.

As indicated in the heading of 3924, for an article to qualify under its terms, it must be a household article. Clearly, the definitions above emphasize the fact that a household article relates to the home or for home use. The "luncheon box" referred to in the Explanatory Note to heading 3924 is a household article. As such, it is an item one might commonly find in a home (kitchen) as for the storage of food. For example, a plastic box or container (similar to Tupperware), used to keep extra portions of food fresh for extended periods of time.

The subject lunch box, similar to the lunch box in HQ 087281, is not a household article. It transports, stores and protects consumable articles outside of the home. Moreover, Legal Note 2(h) to Chapter 39 excludes trunks, suitcases, handbags or other containers of heading 4202 from classification in Chapter 39.

Heading 3923, HTSUSA, provides for articles for the conveyance or packing of goods, of plastic. As was stated in various rulings (see HQ 087635, October 24, 1990; HQ 087281, October 29, 1990), in Customs' view the articles enumerated in EN 39.23 have in common certain characteristics, viz., that they are used generally to convey or transport goods over long distances and often, in large quantities.

In this regard, the instant lunch box is small in size and the flask is not designed to maintain liquids at either a hot or cold temperature. The use of the lunch box and flask is limited to carrying small quantities of food and liquids for short periods of time and, presumably over relatively short distances. As such, it is distinguishable from articles of heading 3923. Consequently, it is more properly classifiable as an article similar to the enumerated articles of heading 4202.

Heading 9503, HTSUSA, providing for other toys was also suggested as an alternative classification for the sample lunch box because of the its appearance, size and use. A toy is an article designed for the amusement of children or adults. Toy, as defined in the New World Dictionary 1505 (2nd. ed., 1974) states:

any article to play with, especially a plaything for children.

Clearly, the function of the lunch box is not, as would be indicated by the definition, a plaything for children or for their amusement. The lunch box with drinking flask is designed for a purely functional use. In addition, Note 1(d) of Chapter 95 excludes from classification containers of heading 4202, 4303 or 4304.

Classification thus devolves to heading 4202, HTSUSA, providing for trunks, suitcases, school satchels and similar items. Various rulings have been issued classifying lunch boxes in heading 4202. In HQ 087281 (October 29, 1990), a lunch box containing a thermos was classifiable in subheading 4202.12.2090, HTSUSA, with the two items comprising a set and the box imparting the essential character. Similarly, in HQ 082488 (February 21, 1989) and HQ 088075 (October 24, 1990), lunch boxes containing a thermos (comprising a set), were classified under subheading 4202.12.2090.

The instant item is a unique combination of a beverage container, which has a handle incorporated into its design, and a bottom tray. When fitted one to the other, the components unite to impart the essential character of the item, i.e., a lunch box. The submitted sample was correctly classified by the import specialist under subheading 4202.99.0000, HTSUSA, which provides for trunks, suitcases, school satchels, similar containers, other.


Following the reasoning above, the lunch box was properly classified under subheading 4202.99.0000, HTSUSA, providing for trunks, suitcases, school satchels, similar containers, other. The applicable rate of duty is 20% ad valorem.

As the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision should be appended to the Form 19 Notice of action and furnished to the protestant.


John Durant, Director
Commercial Rulings Division