CLA-2 OT: CTF: TCM H266606 ERB
Port Director
Port of Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd.
Long Beach, CA 90802
Attn: Doug Snoland, Import Specialist
RE: Application for Further Review of Protest Number 2704-15-100262; Tariff classification of the Good Lunch Box
Dear Port Director:
This letter is in reply to the Application for Further Review (AFR) of Protest Number 2704-15-100262, filed February 13, 2015, by ORE Originals (ORE). The Protest is against U.S. Customs and Border Protection’s (CBP) classification of the Good Lunch Box under subheading 4202.12.20 of the Harmonized Tariff Schedule of the United States (HTSUS). One sample was provided to this office and is being returned with our response.
FACTS:
The subject merchandise is a molded plastic, rectangular shaped box, with rounded corners. It features a separate lid, which has four claps that secure the lid to the box. It measures 8 ½ inches wide, by 2 ½ inches tall, by 5 ½ inches deep. The box holds 1.1 liters or 41.5 ounces. The interior storage component features a three-way divider, designed to hold separate components of ones meal. Cartoon depictions of underwater sea creatures decorate the lid of the sample provided to this office. The advertisement sticker on the box states “Three compartments make it easy to pack delicious, nutritious lunches every day! Eliminate the need for plastic bags!” and “Designed to fit in our Classic or Zippee Lunch Totes”.
One entry of the subject merchandise entered on July 2, 2014, at the Port of Los Angeles/ Long Beach, classified under subheading 4202.92.15, HTSUS, which provides for, “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling bags, insulated food or beverage 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, cutlery 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: Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Of vegetable fibers and not of pile or tufted construction: Of cotton.” On August 25, 2014, CBP advised ORE via Notice of Action (CBP Form 29) that the Good Lunch Box was correctly classified under subheading 4202.12.2025, HTSUSA (Annotated), which provides for “Trunks…: Trunks, suitcases, vanity cases, attaché 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.” On September 12, 2014 CBP liquidated the subject merchandise under subheading 4202.12.2025, HTSUSA.
ORE asserts in this AFR that the goods are correctly classified under subheading 3924.10.40, HTSUS, which provides for, “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Tableware and kitchenware: Other.”
ISSUE:
Whether the subject Good Lunch Box is classified as a good similar to the enumerated containers of heading 4202, HTSUS, specifically in subheading 4202.12.20, HTSUS, or whether it is plastic kitchenware of subheading 3924.10.40, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2) (B)(ii), (iii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest Number 2704-15-100262 is properly accorded to ORE pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact which has not previously been ruled upon by CBP or the Courts. Specifically, if a molded plastic container that has an interior three-way divider is considered a plastic food storage container or a lunch box.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the heading of tariff schedule and any relative section or chapter notes, and unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS subheadings under consideration here are as follows:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3924.10 Tableware and kitchenware:
3924.10.40 Other
***
4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, of wholly or mainly covered with such materials or with paper:
Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels and similar containers:
4202.12 With outer surface of plastics or of textile materials:
4202.12.20 With outer surface of plastics:
Structured, rigid on all sides:
Note 2 to Chapter 39 contains exclusionary language which is relevant here and states:
This chapter does not cover:
(m) Saddlery or harness (heading 4201) or trunks, suitcases, handbags, or other containers of heading 4202
Therefore, if the subject Good Lunch Box is described by heading 4202 as a container similar to the exemplars of that heading, then it is excluded from classification in Chapter 39.
CBP has consistently classified molded plastic lunch boxes in subheading 4202.12, HTSUS. See New York Ruling Letter (NY) N047586, dated January 21, 2009, (classifying a molded plastic lunch box, where the lid has three individual compartments with snap closure. The bottom portion of the box consists of one undivided compartment for food and secures with a snap closure. The box is used to convey food from home to work, school, or other places); NY 814677, dated October 3, 1995 (classifying a “3-piece lunch kit” with a lunch box having a hinged lid, secured by means of double plastic lift fasteners on either site. The box had a plastic carrying handle and a textile shoulder strap); NY N190445, dated November 22, 2011 (classifying a molded plastic lunch box that had two interior storage areas. The upper level is specially shaped and fitted to contain a sandwich. The lower level is divided into three compartments which are designed to hold measured portions of other foods, such as fruits or vegetables. The box is designed to transport food from the home to work or school. It was rectangular in shape, secures with a plastic latch closure and features a carrying handle.).
CBP has also consistently classified plastic food storage containers in subheading 3924.10, HTSUS. See NY L83974, dated May 6, 2005 (classifying a 3-piece set of plastic food storage containers which ranged in capacity from 15 ounces to 1 ¾ quarts, with lids, designed for use in the freezer or microwave); NY G88103, dated March 22, 2001, (classifying a 100-piece plastic food storage set, made of various shapes and sizes); NY M82005, dated April 10, 2006 (classifying 12 plastic food storage containers with lids packaged with an unassembled plastic carousel on which to store the items when not in use); NY 813405, dated September 1, 1995 (classifying plastic food storage containers, components of a vacuum system for food storage, where Customs stated “[t]hey appear to be the type of containers used in the home to store food.”).
These two products are not classified under the same subheading because these goods are distinguishable from one another.
Plastic food storage containers are for short- or long-term storage of bulk food or leftovers, in the home, specifically in one’s kitchen. Lunch boxes provide storage, protection and organization to food, for ease in transportation from home to work, school, or other locations outside the home. This is an important distinction as the Courts have held that goods sharing the same essential characteristics of organizing, storing, protecting, and carrying various items, are properly classified in heading 4202, HTSUS. See Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995).
The subject Good Lunch Box shares traits with the enumerated containers found in subheading 4202.12.20, HTSUS, because of the size and shape of the container, and especially because of the three-way divider inside it. That the Good Lunch Box does not have a handle does not mean it is not designed to store and carry food inside it. The dimensions and marketing are clear that the good is used as a portable means of carrying ones lunch from the home to a location outside the home (e.g. as a “lunch box”). This means the exclusionary language of Note 2(m) applies, as the good is described by the terms of subheading 4202.12.20, HTSUS, then it is excluded from classification in Chapter 39.
ORE also argues in its AFR submission that Customs disregarded the marketing for the product which states that the goods are for use in the home, and thus are more akin to plastic food storage containers of heading 3924, HTSUS. Specifically, ORE submitted what appears to be an online product description which states, “The classic and functional locking-lid design is perfect for storing food at home, keeping it fresh and helping to avoid spills.” Whether or not this is a true statement, this is not dispositive as to the product’s tariff classification. Moreover, it does not contradict the fact that the product is called the “Good Lunch Box.” [Emphasis added] All other submitted marketing materials highlight the lunch box’s portability, that the compartments make it easy to pack delicious, nutritious lunches every day, which eliminates the need for plastic bags, and lastly, that the goods are designed to fit into ORE’s own Classic Lunch Sacks or Zippee! Lunch Totes. One does not need these characteristics, or plastic bags, or lunch sacks, to eat lunch in one’s own home. Each of these characteristics describe lunch boxes, which are properly classified in subheading 4202.12, HTSUS.
HOLDING:
Pursuant to GRI 1, the subject merchandise is classified under heading 4202, HTSUS. It is specifically provided for under subheading 4202.12.2025, HTSUSA (Annotated), which provides for, “Trunks…: Trunks, suitcases, vanity cases, attaché 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 column one rate of duty is 20% ad valorem.
The Protest should be DENIED.
You are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division