CLA-2 CO:R:C:T 950049 jlj
Mr. Bruce Shulman
Stein, Shostak, Shostak & O'Hara
1620 L St., N. W., Suite 807
Washington, D. C. 20036-5605
RE: Classification Of Plastic Lunchboxes with Plastic Thermos
Bottles
Dear Mr. Shulman:
This is in reference to your letters dated March 31, 1992,
December 10, 1991, and July 22, 1991, concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) for plastic lunchbox and thermos
bottle kits manufactured by your client Industrias Diza S. A. de
C. V., of Mexico. You submitted a sample set to this office.
FACTS:
The sample under consideration is a plastic lunchbox with
metal clasps and metal handle hinges. It contains an eight ounce
uninsulated thermos bottle with pour spout which is color-
coordinated with the lunchbox. Both items are aqua with peach
trim.
ISSUE:
Are the instant lunchboxes with thermos bottles classified
under the provision for other household articles of plastic, in
Heading 3924, HTSUSA, under the provision for trunks,...camera
cases,...and similar cases, in Heading 4202, HTSUSA, or under
some other tariff provision?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRIs), taken
in order. GRI 1 provides that classification shall be according
to the terms of the headings and any relative section or chapter
notes.
You argue that the Explanatory Note to the Heading 3924,
HTSUSA, specifically provides for "luncheon boxes." The Note in
question says, in pertinent part:
This heading covers the following articles of plastics:
* * *
(C) Other household article 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.]
You cite to dictionary definitions of "lunchboxes" and to GRI 3
(b), HTSUSA, in support of your contention that the lunchboxes
with thermos bottles should be classified under the provision for
other household articles of plastics in Heading 3924, HTSUSA. In
the alternative. you suggest classification of the lunchboxes as
articles for the conveyance or packing of goods, of plastics, in
Heading 3923, HTSUSA.
In a conference held at Customs Headquarters on January 22,
1992, you reiterated this position, citing Customs Headquarters
Ruling Letter (HRL) 083362 of July 21, 1989, in support of
classification of the lunchboxes in Heading 3924, HTSUSA.
HRL 083362 was revoked by HRL 088075 of October 24, 1990,
therefore it is not relevant here.
Three other ruling letters are on point here. In HRL 082488
of February 21, 1990, and HRL 087281 of October 29, 1990, plastic
lunchboxes with thermos bottles were classified under the
provision for trunks,...and similar container: similar
containers: with outer surface of plastics: other: other, in
subheading 4202.12.2090 [currently subheading 4202.12.2085],
HTSUSA. In HRL 087635 of October 24, 1990, a plastic
lunchbox/cooler was classified as a similar container in
subheading 4202.12.2090, HTSUSA. In HRL 950467 of December 24,
1991, we stated that these letters would be modified to classify
the merchandise in subheading 4202.99, HTSUSA.
Customs position with respect to the scope of Heading 3924
is that it 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
containers 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 is an article 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 3923, HTSUSA, covers articles for the conveyance or
packing of goods, of plastics. It specifically covers boxes,
cases, crates, sacks, bags, carboys, bottles, flasks, spools,
cops, bobbins, stoppers, lids and caps. We find that the instant
lunchboxes are not ejusdem generis with the enumerated articles,
therefore Heading 3923 is not applicable to the instant
merchandise.
Chapter Note 2 (h) of Chapter 39, HTSUSA, specifically
states:
2. This chapter does not cover:
* * *
(h)...trunks, suitcases or other containers of
heading 4202.
If the instant lunchboxes are found to be classified in Heading
4202, they are excluded from classification in either Heading
3923 or Heading 3924.
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.
The Explanatory Notes state in relevant part concerning
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 1989),
a plastic lunchbox was held classifiable under item 706.62, TSUS,
as luggage. The Aladdin court stated that:
In the case at bar...the lunchbox was clearly intended
to be covered by the provision for luggage under TSUS item
706.62. The lunchbox 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 lunchbox 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.
HOLDING:
Following the rationale set forth above, the instant
lunchbox with thermos is classified as luggage under subheading
4202.99.0000, HTSUSA, dutiable at the rate of 20 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division