CLA-2 CO:R:C:T 953044 SK

S. Richard Shostak
Bruce N. Shulman
Stein Shostak Shostak & O'Hara
1620 L Street, N.W., ste. 807
Washington, D.C. 20036-5605

RE: Reconsideration of HRL 950049 (4/21/92); modified; classification of plastic lunchbox; Note 2(h) of Chapter 39; Sports Graphics, Inc. v. U.S., Slip. Op. 92-192 (Oct. 20, 1992); HRL 952702 (4/9/93); 4202.12.2025, HTSUSA.

Dear Messrs. Shostak and Shulman:

This is in reply to your letter of November 13, 1992, requesting this office to reconsider Headquarters Ruling Letter (HRL) 950099, issued to you on behalf of your client, Industrias Diza S.A. de C.V., on April 21, 1992. That ruling classified a plastic lunchbox with thermos bottle as a container similar to those of heading 4202 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The article at issue is a plastic lunchbox with metal clasps and metal band hinges. It contains an eight ounce uninsulated thermos bottle with pour spout.

HRL 950049 classified the article at issue under subheading 4202.99.0000, HTSUSA, as a container similar to those set forth in heading 4202. You submit that the proper classification of this article is under heading 3924, HTSUSA, as tableware, kitchenware, other household and toilet articles, of plastic.

ISSUE:

Is the plastic lunchbox at issue properly classifiable under heading 4202, HTSUSA, or under headings 3923 or 3924, HTSUSA?

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LAW AND ANALYSIS:

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.

Heading 4202, HTSUSA, provides for: "[T]runks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers ..." Our first inquiry is whether the lunchbox at issue is ejusdem generis with the articles specifically provided for in this heading. In the past, Customs has consistently held that plastic lunchboxes were classifiable under heading 4202, HTSUSA. See, HRL's 088472 (August 17, 1992); 087281 (October 29, 1990); 082488 (February 21, 1992). Each of these rulings held that the plastic lunchbox there in question was ejusdem generis with the articles set forth in heading 4202. In HRL 087281, this office 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, Customs stated: "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, excludes from coverage within this chapter: (h) Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202." [emphasis added]. As the lunchbox at issue is similar to the containers set forth in heading 4202, HTSUSA, it cannot be classified under Chapter 39 by mandate of the Chapter Note set forth above.

Moreover, as noted in HRL 952702, dated April 9, 1993, heading 3923, HTSUSA, provides for articles of plastic used for the conveyance or packing of goods, and has been determined to apply to articles that convey or transport goods. Heading 3924, HTSUSA, which covers plastic tableware, kitchenware, other household articles and toilet articles, has been determined to apply only to articles used in the home and therefore "reference to the term 'luncheon box' in the Explanatory Notes to heading 3924 has been determined to apply to a container designed to

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store and protect food and luncheon meats while in the home." See HRL's 087281 and 088472.

In your submission to this office, you assert that the recent Court of International Trade decision in Sports Graphics, Inc. v. United States, 88-08-00656, Slip. Op. 92-192 (CIT October 20, 1992), lends support to your position that the lunchbox at issue is not classifiable under heading 4202, HTSUSA, and is more appropriately provided for in heading 3924, HTSUSA. This office disagrees with this presumption for several reasons and we follow our earlier analysis set forth in HRL 952702 which states:

"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 ... '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 772.15/15, 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

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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." For the aforementioned reasons, this office concludes that the lunchbox at issue was properly classified in HRL 950049 as a container similar to those of heading 4202, HTSUSA. We note, however, that classification under 4202.99.0000, HTSUSA, is a residual subheading and does not provide for the subject merchandise as specifically as does subheading 4202.12.2050, HTSUSA, which covers articles such as trunks, suitcases, vanity cases, attache cases, briefcases and similar containers with outer surface of plastics. Accordingly, classification is proper under the latter subheading.

HOLDING:

HRL 950049 is modified to reflect the following classification: 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, which provides for, in pertinent part, trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; with outer surface of plastics or of textile materials: with outer surface of plastics... other, dutiable at a rate of duty of 20 percent ad valorem.

The designated textile and apparel categories may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at the local Customs office.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint

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(quota/visa) categories, your client should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

In order to ensure uniformity in Customs' classification of this merchandise and eliminate uncertainty, pursuant to section 177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), HRL 950049 is modified to reflect the above classification effective with the date of this letter.

This modification is not retroactive. However, for the purposes of future transactions, HRL 950049 will not be valid for importations of the subject merchandise arriving in the United States after the date of this notice. We recognize that pending transactions may be adversely affected (i.e., merchandise previously ordered and arriving in the United States subsequent to this modification will be classified accordingly). If it can be shown that your client relied on HRL 950049 to his detriment, you may apply to this office for relief. However, you should be aware that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director
Commercial Rulings Division