CLA-2 CO:R:C:T 952702 BC
Thomas J. O'Donnell, Esq.
SONNENBERG, ANDERSON, O'DONNELL & RODRIGUEZ
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).
FACTS:
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.
ISSUE:
What is the proper classification of the plastic lunchbox at
issue?
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.
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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings division