CLA-2 CO:R:C:T 953663 ch
District Director
Los Angeles
300 South Ferry Street
Terminal Island
San Pedro, California 90731
Re: Application for further review of protest 2704-XX-
XXXXXX; classification of a plastic lunch box.
Dear Sir/Madam:
The above-referenced protest was forwarded to this office
for further review. We have considered the protest and our
decision follows.
FACTS:
The subject merchandise is described as "plastic lunch
boxes" by the protestant, Associated Premium Corporation. The
lunch boxes are comprised of injected-molded plastics. We infer
from this description that they are rigid rectangular or square
containers designed to carry food and beverages from place-to-
place.
ISSUE:
Whether the plastic lunch boxes are classifiable under
heading 4202, HTSUSA, which provides in part for trunks,
suitcases, vanity cases, attache cases, briefcases, school
satchels and similar containers, or heading 3924, HTSUSA, which
provides for tableware, kitchenware, other articles and toilet
articles, of plastics?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings of the tariff and any relative section or chapter
notes. Where goods cannot be classified on the basis of GRI 1,
the remaining GRI will be applied in order.
Heading 4202, HTSUSA, for:
Trunks, Suit-Cases, Vanity-Cases, Executive-Cases,
Briefcases, School Satchels, Spectacle Cases, Binocular
Cases, Camera Cases, Musical Instrument Cases, Gun
Cases, Holsters and Similar Containers; Travelling-
Bags, Toilet Bags, Rucksacks, Handbags, Shopping-Bags,
Wallets, Purses, Map-Cases, Cigarette-Cases, Tobacco-
Pouches, Tool Bags, Sports Bags, Bottle-Cases,
Jewellery Boxes, Powder-Boxes, Cutlery Cases and
Similar Containers, of Leather or of Composition
Leather, of Sheeting of Plastics, of Textile Materials,
of Vulcanised Fibre or of Paperboard, or Wholly or
Mainly Covered with Such Materials or With Paper.
(Emphasis added).
Therefore, heading 4202 encompasses the enumerated articles and
containers similar thereto.
We have consistently determined that plastic lunch boxes are
containers similar to those enumerated in heading 4202. See
Headquarters Ruling Letter (HRL) 953044, dated April 19, 1993;
HRL 952702, dated April 9, 1993; HRL 951029, April 7, 1992; HRL
950049, dated April 21, 1992; HRL 950467, dated December 24,
1991; HRL 088076, dated October 24, 1990; HRL 088075, dated
October 24, 1990; HRL 087635, dated October 24, 1990; HRL 082488,
dated February 21, 1989. These decisions have emphasized the
fact that lunch boxes are designed primarily for the convenience
of the traveler to carry and store food and beverages. We note
that articles such as suitcases, vanity cases, attache cases and
briefcases, all of which are enumerated in heading 4202, are
designed for a similar purpose; i.e. to carry and store personal
effects during travel. Accordingly, we conclude that the instant
plastic lunch boxes are ejusdem generis with the containers
enumerated in heading 4202.
The protestant advances several arguments in support of its
position that heading 4202 is not applicable in this instance.
First, protestant notes that heading 4202 concludes with a
requirement that certain containers of this heading be composed
"of leather or of composition leather, of plastic sheeting, of
textile materials, of vulcanized fiber, or of paperboard or
wholly or mainly covered with such materials." As the instant
merchandise is not of, or covered with, such materials,
protestant concludes that heading 4202 is inapplicable.
However, the articles specified in heading 4202 are broken
into two sections separated by a semi-colon. The Explanatory
Notes (EN), which are the official interpretation of the
Nomenclature at the international level, state in pertinent part
that:
[T]he articles covered by the first part of the heading
may be of any material...The articles covered by the
second part of the heading must, however, be only of
the materials specified therein or must be wholly or
mainly covered with such materials or with paper.
As we conclude that the subject lunch boxes are similar to
containers enumerated in the first half of the heading, there is
no requirement that they be composed of a particular material.
Hence, heading 4202 encompasses lunch boxes composed of molded
plastic.
Second, protestant cites Chapter 42, additional U.S. note 1,
which states:
For the purposes of heading 4202, the expression
"travel, sports and similar bags" means goods, other
than those falling in subheadings 4202.11 through
4202.39, of a kind designed for carrying clothing and
other personal effects during travel, including
backpacks and shopping bags of this heading, but does
not include binocular cases, camera cases, musical
instrument cases, bottle cases and similar containers.
Protestant contends that the purpose of a lunch box "is not for
carrying clothing like backpacks or shopping bags, but is
obviously used to transport food on a continuing basis." On this
basis, protestant concludes that a lunch box is not a container
similar to those enumerated in heading 4202.
By its terms, additional U.S. note 1 describes travel,
sports and containers similar thereto. Travel and sports bags
are found in the second part of heading 4202, and are classified
within subheadings 4202.91 and 4202.92 (and not subheading
4202.99 as the protestant suggests). In this case, the
merchandise is classifiable under heading 4202 as a container
similar to those enumerated in the first part of the heading, and
is not classified within subheadings 4202.91 and 4202.92. While
the lunch boxes are not classified as "travel, sports and similar
bags," this fact does not preclude their classification within
heading 4202. As we find that the lunch boxes are similar to
other containers of this heading, we need not reach protestant's
claim that lunch boxes have a different purpose from backpacks
and shopping bags.
Finally, protestant directs our attention to Chapter 42,
U.S. additional note 2, which states:
For purposes of classifying articles under subheadings
4202.12, 4202.22, 4202.32, and 4202.92, articles of
textile fabric impregnated, coated, covered or
laminated with plastics (whether compact or cellular)
shall be regarded as having an outer surface of textile
material or of plastic sheeting, depending upon whether
and the extent to which the textile constituent or the
plastic constituent makes up the exterior surface of
the article.
Protestant has inferred from this passage that "for the purposes
of classifying articles under heading 4202 the item in question
should be a textile fabric which may or may not be impregnated,
coated, covered, or laminated with plastics." This conclusion is
unsupported by the plain language of the heading in several
respects. However, for the purposes of this decision we need
merely refer again to the fact that containers of the first part
of the heading may be of any material. It follows that U.S.
additional note 2 has no bearing on the classification of the
instant lunch boxes.
Chapter 39, note 2(h), provides that containers classifiable
under heading 4202 are precluded from classification under
Chapter 39. As we find that the plastic lunch boxes are
classifiable under heading 4202, heading 3924 is inapplicable.
HOLDING:
Based on the foregoing discussion, this protest should be
denied in full. The subject merchandise shall be classified
under subheading 4202.12.2025, which provides for 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,
structured, rigid on all sides: other. The applicable rate of
duty is 20 percent ad valorem.
A copy of this decision should be attached to the CF 19
Notice of Action to satisfy the notice requirement of section
174.30(a), Customs Regulations.
Sincerely,
John Durant, Director