CLA-2 CO:R:C:T 952702 BC

Thomas J. O'Donnell, Esq.
200 South Wacker Drive
Chicago, Illinois 60606

RE: Modification of NYRL 875527; classification of plastic lunchbox; Note 2(h) of Chapter 39; Sports Graphics, Inc. v. U.S.

Dear Mr. O'Donnell:

This responds to your letter of August 31, 1992, wherein you requested that New York Ruling Letter (NYRL) 875527, dated June 29, 1992, be revoked. That ruling classified the plastic lunchbox at issue as a container similar to those of heading 4202, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).


The article at issue is a child's lunchbox. It is called the "Monster Box" because it is made to resemble a monster. It is constructed of molded plastic and measures 8 1/2 inches (long) x 4 3/4 inches (wide) x 8 3/4 inches (height). The lower part of the lunchbox, 2 3/4 inches deep, rectangular, and without compartments, is connected to the upper part by a hinge. The upper part has a compartment into which a soda can or small juice bottle will fit. The lunchbox opens by releasing two side clasps that also form the monster's teeth and swinging the top upward and back by means of the hinge. The upper exterior has been molded into the shape of a monster's head, with tentacles extending above the head to form the handle. The sample has a light sensitive sound device in the upper interior of the lunchbox, which activates a "roaring" sound when the lunchbox is opened; the method of activation was subsequently changed so that lunchboxes now are produced with a mechanical trigger device to activate the sound.

The lunchboxes are marketed as both lunchboxes and boxes to hold a child's personal items, such as crayons, small toys, etc. The advertising includes the following phrases: "Make sure you pack everything"; "your lunch, your toys, your very special things"; and "take your monster box wherever you go."

New York Ruling Letter 875527 classified the lunchbox under subheading 4202.99.0000, HTSUSA, as containers similar to those set forth in heading 4202. In requesting revocation of this ruling, you state that the lunchbox should be classified under subheading 3924.90.5000, HTSUSA, as tableware, kitchenware, other household and toilet articles, of plastic: other: other.


What is the proper classification of the plastic lunchbox at issue?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relevant section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's applied, as appropriate, in sequential order.

The lunchbox at issue has been classified under heading 4202 as a container similar to those specified in that heading which, in part, are as follows: "Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers . . ." You claim that this classification is erroneous since the plastic lunchbox at issue is not ejusdem generis with these containers.

The classification of plastic lunchboxes under heading 4202 is well established. The following Headquarters Ruling Letters (HRL), to name only a few, dealt with plastic lunchboxes and classified them under heading 4202, HTSUSA: 088472 (August 17, 1992); 950049 (April 21, 1992); 087281 (October 29, 1990); and 082488 (February 21, 1990). Each ruling found the plastic lunchbox there in question to be ejusdem generis with the articles set forth in heading 4202, HTSUSA. In HRL 087281, the following was stated: "While the lunchbox allows for short-term storage and protection of food and beverages, it is designed primarily for the convenience of the traveler. Consequently, it is more properly classifiable as a similar container of heading 4202." In HRL 088472, it was put this way: "Since the function of the lunchbox at issue is to carry and store one's food, it is ejusdem generis with the containers of Heading 4202 and consequently it is excluded from Headings 3923 and 3924 by virtue of Chapter Note 2(h) of Chapter 39."

Chapter Note 2(h) of Chapter 39, HTSUSA, provides the following: "This chapter does not cover: (h) Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202." The above cited rulings applied this provision to exclude competing headings in Chapter 39, including headings 3923 and 3924. This provision is applicable to the instant case, as well. Since the lunchbox in question is classifiable in heading 4202, HTSUSA, it cannot be classified under Chapter 39.

Further, heading 3923, HTSUSA, covering articles of plastic used for the conveyance or packing of goods, has been determined to apply to articles that convey or transport goods. Heading 3924, HTSUSA, covering plastic tableware, kitchenware, other household articles and toilet articles, has been determined to apply only to articles used in the home. Thus, the reference to the term "luncheon box" in the Explanatory Notes to heading 3924 has been determined to apply to a container designed to store and protect food and luncheon meets while in the home (HRL's 087281, October 29, 1990; 950049, April 21, 1992; and 088472, August 17, 1992).

Subsequent to the filing of your ruling request, you raised the Court of International Trade's opinion in Sports Graphics, Inc. v. United States, Slip Op. 92-192 (CIT October 20, 1992), 26 Cust. Bull., No. 46, p.27, Nov. 12, 1992, suggesting that Sports Graphics is relevant and favorable to your client's case.

We disagree. First, Sports Graphics was decided by the court's application of General Interpretive Rule 10(e), TSUS (Tariff Schedules of the United States). That is, the court found that the "chief use" of the lunchbox was to prepare, serve, and store food and beverages. Consequently, the court held that the appropriate classification was item 772.15 (or 772.16), TSUS, which covered, in part, articles chiefly used for preparing, serving, or storing food or beverages, or food or beverage ingredients. General Interpretive Rule 10(e), TSUS, was not carried over into the HTSUSA. There are six GRI's in the HTSUSA scheme, only the first four of which are applied in the routine classification of goods (Rule 5 applying to containers entered with their contents and Rule 6 being a general principle). "Chief use" is not a basis for classification determinations under the HTSUSA. ("Principle use" is a concept under the Additional U.S. Rules of Interpretation, but it is not relevant here.)

Second, the choice presented to the court in Sports Graphics was between classification under the tariff provision for luggage, item 706, TSUS, or classification under item 772, TSUS, as above. Given these options, the court's determination of chief use was conclusive. In the instant case, the choice presented does not include an option for a HTSUSA provision covering articles used to prepare, serve, and store food or beverages. The part of item 772.15/16, TSUS, that applied to articles used for these purposes was not carried over to the HTSUSA. Thus, under the HTSUSA, the issue addressed by the court in Sports Graphics is not relevant to the instant case and the decision there made is not applicable as precedent in determining the instant question.

The choice here under the HTSUSA is between heading 4202 and heading 3924. This choice presents an entirely different case than that which was presented in Sports Graphics. The court's holding that the lunchbox there should be classified under item 772.15/16, TSUS, is not authority for the proposition that heading 3924 should prevail over heading 4202 under the HTSUSA.

Finally, you pointed out that the TSUS/HTSUS conversion table shows that subheading 3924.90.5000, HTSUSA, is listed under item 772.1500, TSUS. The conversion table has no legal significance and is not conclusive authority for classification under the HTSUSA. Moreover, the second part of item 772.15/16, TSUS, covered household articles, as does subheading 3924.90.5000, HTSUSA. This explains the connection of these two tariff provisions in the conversion table.

Based on the foregoing, we conclude that the plastic "Monster Box" lunchbox here at issue is classifiable under heading 4202, HTSUSA. This conclusion follows a long line of precedent and is unaffected by the CIT's opinion in Sports Graphics. New York Ruling Letter 875527, although correct in classifying the lunchbox at issue under heading 4202, HTSUSA, must be modified to reflect classification under subheading 4202.12.2025, HTSUSA. This subheading, covering articles with outer surface of plastic that are similar to articles enumerated in the first part of heading 4202 (prior to the semicolon), more specifically describes the lunchbox at issue. This change does not affect the duty rate.


The plastic lunchbox at issue is classifiable as a container similar to those of heading 4202, HTSUSA. It is classifiable under subheading 4202.12.2025, HTSUSA. The applicable rate of duty is 20% ad valorem.


John Durant, Director
Commercial Rulings division