CLA-2 RR:CR:TE 961707 RH
Mr. David M. Rickert
E. Besler & Company
P.O. Box 66361
Chicago, Illinois 60666-0361
RE: Revocation of PD C85024; Classification of a metal lunch box with or without a thermos;
subheading 4202.19.0000; subheading 4202.99.9000;
Dear Mr. Rickert:
On March 31, 1998, Customs issued Port Decision (PD) C85024, to you on behalf of your client, The Thermos Company, regarding the classification of a metal lunch box. The ruling classified the box under subheading 4202.92.9900 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We note that this tariff provision does not exist and was an apparent typographical error. The applicable tariff provision in PD C95024 should have been 4202.99.9000, HTSUSA.
We have been asked by Customs National Commodity Specialist Division to review that decision and to consider classification of the lunch box under subheading 4202.19.0000, HTSUSA. Pursuant to section 1625(c)(1) of the United States Code (19 U.S.C. §1625(c)(1)), notice of the proposed revocation of PD C85024 was published on October 28, 1998, in the Customs Bulletin, Volume 32, No. 43.
FACTS:
The lunch box under consideration measures approximately 9 x 7 x 4 inches. It has a secured top closure and a single carrying handle. The box is not insulated and is entirely composed of metal. It will be imported both with and without a thermos® inside.
ISSUE:
Is the metal lunch box classifiable under subheading 4202.19.0000, HTSUSA, which covers articles such as trunks, suitcases, vanity cases, attache cases, briefcases and similar containers : Other, or under subheading 4202.99.9000, HTSUSA, a residual provision?
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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. Moreover, Customs refers to the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) for guidance. While not legally binding, the EN constitute the official interpretation of the HTSUSA at the international level.
Heading 4202, reads in its entirety:
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, 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 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.
The articles specified in heading 4202 are broken into two sections separated by a semi-colon. The EN to heading 4202, state in pertinent part that:
The 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. . . .
In HQ 953663, dated May 21, 1993, Customs held that lunch boxes were designed primarily for the convenience of the traveler to carry and store food and beverages and are similar to containers enumerated in the first half of the heading. Thus, there was no requirement that they be composed of a particular material.
Heading 7323, HTSUSA, also merits consideration in this case. That provision provides for “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel.” The EN to heading 7323 reads, in pertinent part, that the heading includes:
Other household articles such as wash coppers and boilers; dustbins, buckets, coal scuttles and hods; watering cans; ash trays; hot water bottles; bottle baskets; movable boot scrapers; stands for flat irons; baskets for laundry, fruit, vegetables, etc.; letter boxes; clothes hangers, shoe trees; luncheon boxes. (Emphasis supplied).
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Heading 3924, HTSUSA, is a parallel provision for plastic household items. It encompasses “Tableware, kitchenware, other household articles and toilet articles, of plastics.” Like the EN to heading 7323, the EN to heading 3923 states that the heading includes “luncheon boxes.” (Emphasis supplied).
In HQ 088472, dated August 17, 1992, Customs addressed whether a plastic lunch box was analogous to a luncheon box and, therefore, classifiable under heading 3923. We held:
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 lunch box, which is used to transport food and beverages between the home and school, is not ejusdem generis with the exemplars.
See, HQ 952702, dated April 9, 1993; HQ 087281, dated October 29, 1990; HQ 950049, dated April 21, 1992; HQ 088472, dated August 17, 1992.
The metal lunch box at issue is used to transport food and beverages between the home and school, and is not a “luncheon box” designed to store and protect food or luncheon meats in the home. Accordingly, like the plastic lunch boxes in the above cited rulings which Customs found were not “other household articles” of heading 3924, the metal lunch box is not an “other household article” of heading 7323.
We find that the metal lunch box is similar to the containers enumerated in the first part of heading 4202. Accordingly, it is classifiable under heading 4202. See, Headquarters Ruling Letter (HQ) 953044, dated April 19, 1993, and HQ 952702, dated April 9, 1993. The issue is under which subheading to classify the metal lunch box. In PD C85024, Customs classified the metal lunch box at issue under subheading 4202.99.9000, which is a residual provision. The competing provision is subheading 4202.19.0000, which covers articles such as trunks, suitcases, vanity cases, attache cases, briefcases and similar containers.
A similar issue was raised in HQ 953044 and HQ 952702, in which Customs modified the classification of plastic lunch boxes under 4202.99.9000. The classification of the lunch boxes in those cases was changed to subheading 4202.12.20, HTSUSA, which covers articles with an outer surface of plastic that are similar to articles enumerated in the first part of heading 4202 (prior to the semicolon). We note that, although the holdings in HQ 953044 and HQ 952702
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were correct, Customs should have based its modification to the classification on the conclusion that an “other” (or residual) tariff provision is not applicable where a prior provision describes the merchandise, and not because the residual provision did not provide for the boxes as specifically as did subheading 4202.12.20. In this case, we find that subheading 4202.19.0000 describes the metal lunch box. Therefore, subheading 4202.99.9000, the residual provision, is not applicable.
Finally, you state in your submission that the metal lunch box may be imported with a 10 ounce roughneck bottle inside. Although you do not provide sufficient information for us to determine the classification of the bottle, we assume that the metal lunch box and bottle may be classifiable under different headings. When goods are prima facie classifiable under two or more headings, GRI 3 must be consulted. GRI 3(b) provides that goods put up in sets for retail sale shall be classified as if they consisted of the component which gives them their essential character.
The EN state in Note (X) to Rule 3(b) that the term “goods put up in sets for retail sale” means goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking.
The subject lunch box with bottle meets criteria (a), (b), and (c) above. Both items allow for the short term storage of consumable goods. As imported, the box and bottle are put up in a manner suitable for retail sale to the consumer without any need for repacking. With the above elements satisfied, the essential character of the set must be determined to allow for proper classification. In general, "essential character" has been construed to mean the attribute which strongly marks or serves to distinguish an article. It may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods.
In this case, the lunch box facilitates the transportation of food and drink from one location to another. Its role in relation to the overall use of the goods is paramount. Consequently, the lunch box represents the essential character of the set. The set as a whole, therefore, is classifiable in heading 4202.
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HOLDING:
The metal lunch box at issue is classifiable under subheading 4202.19.0000, HTSUSA. The general column one rate applicable in 1999 is 20 percent ad valorem.
PD C85024, dated March 31, 1998, is hereby revoked. In accordance with 19 U.S.C. §1625(c)(1), this ruling will become affective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. §1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR §177.10(c)(1).
Sincerely,
John Durant, Director
Commercial Rulings Division