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HQ 964953





April 12, 2002

CLA-2 RR:CR:TE 964953 jsj

CATEGORY: CLASSIFICATION

Tariff No.: 7326.90.1000

Mr. Jeffery A Meeks

Meeks & Sheppard
1735 Post Road
Suite 4
Fairfield, Connecticut
06430

RE: Metal Container with Hinge and Handle; Subheading 7326.90.1000, HTSUSA; HQ 963670 (April 12, 2002); HQ 963539 (April 12, 2002) Incorporated by Reference.

Dear Mr. Meeks:

The purpose of this correspondence is to respond to your request of March 22, 2001, directed to the National Commodity Specialist Division of the U.S. Customs Service. The correspondence in issue requested a binding classification ruling on the behalf of Ross Acquisitions d/b/a Gallerie au Chocolat of a “Tin” container.

This ruling letter is being issued subsequent to the following: (1) A review of your submission of March 22, 2001; (2) An examination of a sample; and (3) A telephone conversation conducted between a member of my staff and Ms. Barbara Dawley on July 14, 2001.

It is specifically noted that the sample describe below has a “Christmas” motif painted on it. This was discussed with Ms. Dawley and at her request this office will classify a “generic” container that has not been painted.

Ms Dawley also requested that Customs classify the sample container painted with the Christmas motif. This office is presently unable to address that request. Section 177.7 (b) of Customs regulations, 19 C.F.R. 177.7 (b), precludes the Office of Regulations and Rulings from issuing binding classification rulings when the issue to be addressed is pending before the Court of International Trade or the Court of Appeals for the Federal Circuit. The issue involving the classification of the container with the Christmas motif is currently pending on appeal before the Court of Appeals for the Federal Circuit in the matter of Park B. Smith v. United States, Court of International Trade Slip Opinion 2001-63 (2001). A request for a ruling may be made to this office once the litigation is final.

It is further noted that the container submitted for classification consideration will be imported filled with candy, but in accordance with your request of March 22, 2001, Customs will only classify the container. Customs directs your attention to HQ 963670 (April 12, 2002) in which substantially similar merchandise was classified. The Customs Service, in HQ 963670, in addition to classifying the container also addressed the issue of whether substantially similar containers imported with merchandise should be classified as a “set” pursuant to General Rule of Interpretation 3 or classified pursuant to General Rule of Interpretation 5. The legal reasoning and analysis in HQ 963670 addressing the classification of the container and its contents should be followed.

FACTS

The article submitted for classification consideration is a container composed entirely of tin-plated, sheet steel. It measures five and one-half (5 ½) inches wide, four and three-fourth (4 ¾) inches in height and is two and one-eighth (2 1/8) inches in depth. It has a plastic handle that is three-fourths (3/4) of an inch wide and three and one-half (3 ½) inches long. The handle swivels from the right side to the left side and folds down on top of the container. The container has two loop-style hinges on the bottom of one side that enables it to be opened. It has a metal latch on the top that secures the container closed. It is not internally fitted.

The sample had a label on the bottom that provided information concerning the candy that will be sold with it. The label additionally noted that the item was “For ages 4 & up !”.

The sample presented to this office is painted different shades of purple, green, red, blue and orange and has images of wrapped holiday presents, Christmas trees, Christmas tree ornaments, Christmas tree light bulbs, the words “merry,” “jingle,” “twinkle !” and “joy,” and the year “1999” in the center of the side that opens. This office is advised that other similar containers will be “colorfully decorated with various motifs” similar to the sample. This ruling letter, as previously addressed, will only classify the container in an unpainted condition.

The container will be imported filled with candy, but your request specifically seeks only a classification ruling on the container. This ruling letter will, therefore, not provide legal analysis addressing the classification of the container imported filled with any merchandise. See HQ 963670 Supra.

The container is a product of China.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described 5 ¼ inch by 4 ¾ inch by 2 1/8 inch tin-plate, sheet steel container with a collapsible handle and a latch, but which has not been painted ?

LAW AND ANALYSIS

The Customs Service in Headquarters Ruling Letter 963539 (April 12, 2002) classified containers substantially similar to the Ross Acquisitions d/b/a Gallerie au Chocolat container in subheading 7326.90.1000, HTSUSA. Subheading 7326.90.1000, HTSUSA, provides for:

7326 Other articles of iron or steel:

Other:

Of tinplate.

The legal reasoning and analysis employed in HQ 963539 in classifying those containers is adopted by reference in the classification of the Ross Acquisitions d/b/a Gallerie au Chocolat container. Headquarters Ruling Letter 963539 is attached to and made a part of this ruling letter.

The unpainted container to be imported by Ross Acquisitions d/b/a Gallerie au Chocolat is classified in subheading 7326.90.1000, HTSUSA, pursuant to the analysis provided in HQ 963539.

HOLDING

The unpainted container to be imported by Ross Acquisitions d/b/a Gallerie au Chocolat is classified in subheading 7326.90.1000, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is FREE.

The legal reasoning and analysis of Headquarters Ruling Letter 963539

(April 12, 2002) is adopted by reference. Headquarters Ruling Letter 963539 is attached to and made a part of this ruling letter.

Sincerely,

John Durant, Director
Commercial Rulings Division

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