CLA-2 OT:RR:CTF:TCM H042583 CkG
Ms. Sherry Sampson
Whirley Industries, Inc.
P.O. Box 988
Warren, PA 16365
Re: Revocation of NY N015784 and NY J86143; classification of plastic food container
Dear Ms. Sampson,
This is in reference to New York Ruling Letter (NY) N015784 and NY J86143, issued by the Customs and Border Protection (CBP) National Commodity Division on September 11, 2007 and June 18, 2003, respectively, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a plastic food container. We have reconsidered these decisions, and for the reasons set forth below, have determined that classification of the food container as a toy of heading 9503, HTSUS, is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, a notice proposing to revoke NY N015784 and NY J86143 was published on February 10, 2010, in Volume 44, Number 7, of the Customs Bulletin. CBP received no comments in response to the notice.
FACTS:
NY N015784, dated September 11, 2007, issued to Whirley Industries, Inc., describes a sample of the Shamu Snak Pak as follows:
a black and white plastic container molded into the shape of a whale. The whale container measures approximately 10 inches in length and 8 ½ inches in height. The container is molded into a replica of ‘Shamu’ the whale which is located in the Sea World Adventure Park. The words ‘Sea World Adventure Parks’ are printed on the outside of the container. The container is constructed to be used as a food container for a children’s meal at the food establishments in a park or zoo and will be given away as a novelty toy. In addition, you state that you intend to import similar items in various colors and shapes such as cheetah heads, tiger heads and monkey heads.
NY J86143, dated June 18, 2003, was issued to customs broker Mr. Spencer Hutchins of AKA International, Inc. (representing importer Drink Works). This ruling describes a product called the Shamu Snack Pack, item number 3410-F001, as "constructed of injection molded polypropylene and is a novelty give away toy that accompanies each kid’s meal that is purchased."
Whirley Industries, Inc. also does business as Whirley Drink Works. The items described in NY N015784 and NY J86143 appear to be substantially similar and we will treat them as such.
ISSUE:
The issue is whether the Shamu Snak Pak container is a toy of heading 9503, HTSUS, a container of heading 4202, HTSUS, or a household article of heading 3924, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
The HTSUS provisions under consideration are as follows:
3924: Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3924.10: Tableware and kitchenware:
3924.10.40: Other……
3924.90: Other:
3924.90.56: Other……
* * * * *
4202: Trunks, suitcases, vanity cases, attache cases, briefcases, school
satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers:
4202.12: With outer surface of plastics or of textile materials:
4202.12.20: With outer surface of plastics . . . . . .
* * * * *
9503.00.00: Tricycles, scooters, pedal cars and similar wheeled toys; dolls’
carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…..
* * * * *
Chapter Note 2(m) of Chapter 39, HTSUS, provides that Chapter 39 does not cover “Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202."
Note 1(d) to Chapter 95 provides that the Chapter does not cover “Sports bags or other containers of heading 4202, 4303 or 4304.”
* * * * *
EN 39.24 provides, in pertinent part, as follows:
This heading covers the following articles of plastics:
A) Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee pots, teapots, sugar bowls, beer mugs, cups, sauce boats, fruit bowls, cruets, salt cellars, mustard pots, egg cups, teapot stands, table mats, knife rests, serviette rings, knives, forks and spoons.
(B) Kitchenware such as basins, jelly moulds, kitchen jugs, storage jars, bins and boxes (tea caddies, bread bins, etc.), funnels, ladles, kitchen type capacity measures and rolling pins.
(C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).
* * * * *
EN 42.02 provides, in pertinent part, the following:
This heading covers only the articles specifically named therein and similar containers.
These containers may be rigid or with a rigid foundation, or soft and without foundation.
Subject to Notes 1 and 2 to this Chapter, the articles covered by the first part of the heading may be of any material. The expression " similar containers " in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.
EN 95.03 states, in pertinent part, as follows:
D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….This group includes…
Toys representing animals or non human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.
* * * * *
Classification within heading 3924 is subject to Chapter 39, Legal Note 2(m), which excludes from Chapter 39 goods that are classifiable in heading 4202, HTSUS. Goods of heading 4202, HTSUS, are similarly excluded from Chapter 95 by virtue of Chapter Note 1(d). Therefore, if the goods are described in heading 4202, they are excluded from classification in any of the provisions of Chapters 39 or 95, even if they are described therein.
Heading 4202, HTSUS, is a two part heading which covers only the
articles specifically named therein and similar containers. The first portion of the heading covers certain cases and containers of any material. The second portion covers, amongst other things, insulated food or beverage bags, only when constructed of certain materials not including plastic. See EN 42.02. For the subject merchandise to be classified in heading 4202, HTSUS, we must therefore find that it falls within the scope of the first part of the heading, as a “similar container” to those enumerated therein.
In classifying goods under the residual provision of "similar containers" of heading 4202, HTSUS, the Court of International Trade has stated as follows: “As applicable to classification cases, ejusdem generis (of a similar kind) requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.” Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff’d. 69 F. 3d 495 (Fed. Cir. 1995). The court found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, HTSUSA., i.e., "…to organize, store, protect and carry various items." Totes, 865 F. Supp. at 872.
Your website states that your Snak Pak line “Holds standard size kids meal items.” http://www.whirleydrinkworks.com/prodsum?readform&prod= SNK-MON. The Shamu Snak Pak thus clearly shares the essential characteristics of goods of heading 4202; it is specifically designed to organize, store, protect and transport food. The Snak Pak is not limited to food, however; like trunks, briefcases, suitcases, etc. of heading 4202, it can be used to store and organize any number and kind of personal items.
Furthermore, the Shamu Snak Pak is comparable to plastic lunchboxes, which have consistently been classified in heading 4202, HTSUS. See Headquarters Ruling Letter (HQ) 952702, dated April 9, 1993; HQ 088472 (August 17, 1992); HQ 950049 (April 21, 1992); HQ 087281 (October 29, 1990); HQ 082488 (February 21, 1990); N047586 (January 21, 2009); NY K81365 (December 17, 2003); NY C86517 (May 6, 1998); and NY N878828 (October 13, 1992). Each ruling cited above found the plastic lunchbox in question to be ejusdem generis with the articles set forth in heading 4202, HTSUS. For instance, in HQ 087281, CBP stated as follows: "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 HQ 088472, we 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."
Insofar as the subject merchandise is classified in heading 4202, HTSUS, is cannot be classified in headings 3923 or 3924, HTSUS, in accordance with Chapter 39 Note 2(m), or in heading 9503, HTSUS, in accordance with Chapter 95 Note 1(d).
HOLDING:
By application of GRI 1, the Shamu Snak Pak is classified in heading 4202, HTSUS, specifically in subheading 4202.12.20, which provides for: “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Trunks, suitcases, vanity cases, attache cases,
briefcases, school satchels and similar containers: With outer surface of plastics or of textile materials: With outer surface of plastics.” The 2010 column one, general rate of duty is 20% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N015784, dated September 11, 2007 and NY J86143, dated June 18, 2003, are hereby revoked.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division