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HQ 087281

October 29,1990

CLA-2 CO:R:C:G 087281 SLR

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.12.2090

District Director of Customs
150 North Royal
Mobile, AL 36602

RE: Protest No. 1904-0-000004;
Lunch Box with Thermos

Dear Sir:

This is our decision regarding Application for Further Review of Protest No. 1904-0-000004, filed February 15, 1990, against your decision in the classification of lunch box/Thermos combinations entered on July 20, 1989, and liquidated on November 17, 1989.

FACTS:

The article at issue consists of a plastic lunch box with Thermos. A shipment of the subject merchandise was liquidated in subheading 4202.12.2090, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for trunks, suitcases, vanity cases, briefcases, attache cases, school satchels and similar containers, with an outer surface of plastics, other, dutiable at 20 percent ad valorem.

The importer claims that the subject merchandise should be classified in one of four ways. The first classification claimed by the importer is under subheading 3923.10.00, HTSUSA, which provides for articles for the conveyance or packing of goods, of plastics; boxes, cases, crates, and similar articles. This is based on Headquarters Ruling Letter (HRL) 083362 dated July 21, 1989; and on the concept that the two items are considered a set and classifiable under GRI 3(b). Under this claim, the lunch box would impart the essential character to the set, similar to the picnic cooler covered by HRL 083362.

The importer's first alternate claim is under subheading 3923.30.00, HTSUSA, which provides for articles for the conveyance or the packing of goods, bottles, flasks and similar articles, if it is determined that neither the lunch box nor the thermos represents the essential character of the set. Under GRI 3(c), the subheading for the thermos would apply since it appears last in the Harmonized Tariff Schedule.

The second alternate claim is that each item of the set should be classified separately: the lunch box in subheading 3923.10.00 and the thermos in subheading 3923.30.00. This is based on the decision of the Court of International Trade in Aladdin v. U.S., Slip Op. 89-171, which held that lunch boxes and thermoses entered together are to be classified separately under the Tariff Schedules of the United States Annotated (TSUSA).

The final alternate classification claimed is under subheading 3924.90, HTSUSA, which provides for tableware, kitchenware and other household articles of plastics, other. This is based on a reference in the Explanatory Notes to heading 3924 which indicates that "luncheon boxes" are included in that heading.

ISSUE:

What is the proper classification of the subject merchandise under the HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. 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 Explanatory Notes to GRI 3(b) indicate, in pertinent part, that "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 thermos meets criteria (a), (b), and (c) above. The box and thermos are classifiable under different headings. Both items allow for the short term storage of consumable goods. As imported, the box and thermos 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.

Here, 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. An effort must now be made to find the heading which best describes the plastic lunch box.

Heading 3923, HTSUSA, provides, in pertinent part, for "[a]rticles for the conveyance or packing of goods, of plastics." Heading 4202, HTSUSA, provides, in pertinent part, for "[t]runks, suitcases...attache cases, briefcases, school satchels...and similar containers." Legal Note 2(h) to Chapter 39 excludes trunks, suitcases, handbags or other containers of heading 4202 from classification in Chapter 39.

At first glance, the subject container appears to be classifiable in heading 3923; the lunch box is used for the conveyance of other goods. Nonetheless, it is Customs view that heading 3923 includes, among other things, those containers primarily designed for the preservation and storage of consumables. While the lunch box allows for the short-term storage and protection of food and beverages, it is designed primarily for the convenience of the traveler. Consequently, it is more properly classifiable as a similar container of heading 4202. The set as a whole, therefore, is classifiable in 4202.

In HRL 083362 of July 21, 1989, this office classified a "Duet Pac" picnic cooler as an article for the conveyance of goods, of plastic in subheading 3923.10.00, HTSUSA. As this container was designed primarily for the convenience of the user during travel (the picnicker on a day excursion), that classification no longer represents the position of the Customs Service. We have since revoked HRL 083362 in HRL 088075 of October 24, 1990.

As to the protestant's alternate claims, heading 3924, HTSUSA, the provision for "[t]ableware, kitchenware, other household articles and toilet articles, of plastic" is noted -- as is the word "luncheon box" as it appears in the Explanatory Note to heading 3924. The subject lunch box, however, is not a household article; it transports, stores, and protects consumable articles outside of the home. Moreover, as indicated above, Legal Note 2(h) to Chapter 39 excludes articles of heading 4202 from that chapter.

Finally, as Aladdin v. U.S. deals with concepts unique to the TSUSA, it does not control the classification of the instant merchandise entered under the HTSUSA.

HOLDING:

The plastic lunch box with Thermos is classifiable in subheading 4202.12.2090, HTSUSA, which provides for trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers, with an outer surface of plastics, other. The applicable rate of duty is 20 percent ad valorem.

You should deny the protest in full. A copy of this decision should be sent to the protestant along with the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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