CLA-2 CO:R:C:T 088472jlj
District Director of Customs
300 South Ferry St., Room 2017
Terminal Island
San Pedro, California 90731
RE: Decision on Application for Further Review of Protest No.
2704-90-004150
Dear Sir:
This protest was filed against your decision in the
liquidation of certain entries covering plastic lunchboxes with
plastic bottles imported from Taiwan. Counsel for the protestant
submitted two samples to this office.
FACTS:
The instant merchandise consists of molded plastic
children's lunchboxes fitted with plastic bottles. One type,
which measures approximately 10 inches by 6 inches, is shaped to
represent a school bus. The other type, measuring approximately
8-1/2 inches by 7 inches, is shaped to represent a bear.
Each lunchbox is imported and sold with an 18 ounce plastic
bottle fitted securely within a plastic rimmed compartment. The
bottle is color-coordinated and sized specially to fit within the
lunch box. The lunch box has plastic fittings to hold the bottle
in place so that it does not roll around within the lunch box.
Each lunchbox is also constructed with a separate
compartment for storing and protecting a sandwich, fruit or other
food item, as well as a plastic latch and a carrying handle at
the top.
There are no indications that the two items are ever sold
separately; indeed, because of the color-coordination, the sizing
and the special plastic fittings to hold the bottle in place, it
is apparent that the two items are intended to be sold as a unit.
The lunchboxes and bottles were entered under the provision
for articles for the conveyance or packing of goods, of plastics:
other, in subheading 3923.90.0000, Harmonized Tariff of the
United States Annotated (HTSUSA). The entries were liquidated
under the provision for trunks, suitcases, ... spectacle cases,
binocular cases, camera cases, musical instrument cases, gun
cases, holsters and similar containers: other: other, in
subheading 4202.99.0000, HTSUSA.
ISSUE:
Are the instant lunchboxes classified under the provision
for plastic articles for the conveyance of goods, in Heading
3923, HTSUSA, under the provision for trunks,...camera
cases,...and similar cases, in Heading 4202, HTSUSA, or under
some other tariff provision?
LAW AND ANALYSIS:
Articles are classified under the HTSUSA in accordance with
the General Rules of Interpretation (GRIs). GRI 1 provides that
the classification of articles is determined by the terms of the
headings and any relevant section or chapter notes.
Counsel for the protestant argues that the lunchboxes and
plastic bottles are designed and function to protect and carry
food and that they are classified under the provision for
articles for the conveyance or packing of goods, of plastics;
boxes, cases, crates and similar articles, in subheading
3923.10.0000, HTSUSA. He cites Headquarter Ruling Letters (HRLs)
082788 of February 12, 1990, and 085323 of September 14, 1989, in
support of this contention.
Heading 3923, HTSUSA, covers articles for the conveyance or
packing of goods, of plastics. The Explanatory Notes, the
official interpretation of the Harmonized System at the
international level, provide in pertinent part for Heading 3923
that:
This heading covers all articles of plastics commonly
used for the packing or conveyance of all kinds of products.
The articles covered include:
(a) Containers such as boxes, cases, crates, sacks and bags
(including cones and refuse sacks), casks, cans,
carboys, bottles and flasks.
A lunchbox is a container used for the conveyance of other
goods. In Customs' view, however, the articles enumerated in the
Explanatory Notes above have in common certain characteristics--
i.e., that they are used generally to convey or transport goods
over long distances and often in large quantities. In this
regard, the instant lunchbox which is used to carry small
quantities of food for short periods of time and, presumably,
over relatively short distances, is distinguishable from such
articles as casks and carboys.
In a submission sent to this office dated July 8, 1991,
counsel for the protestant alluded to the fact that the
Explanatory Notes for Heading 3924, HTSUSA, state that:
This heading covers the following articles of plastics:
* * *
(C) Other household articles such as ash trays, hot
water bottles, matchbox holders, dustbins,
buckets, watering cans, luncheon boxes, curtains,
drapes, table covers and fitted furniture dustcovers
(slipcovers). (Emphasis added.)
Counsel concludes that the instant lunchboxes might be included
in Heading 3924, HTSUSA.
Customs position is that Heading 3924 provides for items
which are used in the home (hence the wording of that heading,
"Tableware, kitchenware, other household articles and toilet
articles, of plastic"), while articles which are generally
carried around with the owner are classified in Heading 4202,
HTSUSA. It is our opinion that the reference to a "luncheon box"
in Explanatory Note (C) of Heading 3924 means a plastic container
designed to store and protect food or luncheon meats while in the
home, e.g., a lidded Tupperware storage box for luncheon meats.
Each of the exemplars cited in the Heading 3924 Explanatory Notes
are articles primarily used in the household, therefore the
instant lunchbox, which is used to transport food and beverages
between the home and school, is not ejusdem generis with the
exemplars.
Heading 4202, HTSUSA, 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 cases. Chapter Note 2 (h) of
Chapter 39 excludes trunks, suitcases, hand bags, and similar
containers of Heading 4202 from the scope of Chapter 39.
The Explanatory Notes state in relevant part regarding
Heading 4202:
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.
As the heading is silent on the matter of lunchboxes, the issue
is whether these articles are similar to the containers which are
specifically enumerated.
In Prepac, Inc. v. United States, 78 Cust. Ct. 108, C. D.
4694 (1977), plastic bags with handles and zippered enclosures
which were insulated with fiberglass or polyethylene were
classified as luggage in item 706.60, Tariff Schedules of the
United States (TSUS), the predecessor of the HTSUSA. In Aladdin
International Corp. v. United States, Slip Op. 89-171 (CIT l989),
a plastic lunch box was held classifiable under item 706.62,
TSUS, as luggage. The Aladdin court stated that:
In the case at bar...the lunch box was clearly intended
to be covered by the provision for luggage under TSUS item
706.62. The lunch box is ejusdem generis with the
enumerated articles in Headnote 2 (a) (ii). Like the
exemplars listed in the headnote, the lunch or "sandwich"
box is designed to store, organize and protect the lunch
(food or beverage) or the sandwich contained within, from
which the container derives its name. Furthermore, like the
exemplars in Headnote 2 (a) (ii), the lunch box is designed
to be carried with the person.
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.
Counsel for the protestant contends that if Customs
classified all plastic containers capable of carrying or
conveying as travelling goods in Heading 4202, that Heading 3923
would be nullified in that nothing would be classified there.
Customs does not contend that all plastic containers capable of
carrying or conveying are classified in Heading 4202, however,
merely the ones which are ejusdem generis with the exemplars.
Counsel argues that inasmuch as the statutory provisions
changed from the TSUS to the HTSUSA, eliminating the wording
"...whether or not fitted with bottle, dining, drinking..." from
the luggage provisions, that the current HTSUSA provisions are
not influenced by TSUS court cases. Counsel also argues that the
elimination of this wording is indicative of an intention to
exclude food and beverage receptacles, such as lunchboxes, from
the luggage provisions. We do not agree with counsel's
arguments. As we said above, we believe that Heading 4202 is the
proper heading for articles designed to carry items with the
person. We find that the instant lunchboxes and plastic bottles
are classified in Heading 4202, HTSUSA, because they are ejusdem
generis with the containers of Heading 4202 and are therefore
excluded from Heading 3923 or Heading 3924 by virtue of Chapter
Note 2 (h), of Chapter 39. HTSUSA.
HOLDING:
The plastic lunchboxes and plastic bottles are classified in
subheading 4202.12.2090, HTSUSA, dutiable at the rate of 20
percent ad valorem. You should deny the protest in full. A copy
of this letter should be sent to the protestant along with the
Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division