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HQ 950049

April 21, 1992

CLA-2 CO:R:C:T 950049 jlj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.99.0000

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

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