HQ 953044: Reconsideration of HRL 950049 (4/21/92); modified;classification of plastic lunchbox; Note 2(h) of Chapter 39;Sports Graphics, Inc. v. U.S., Slip. Op. 92-192 (Oct. 20, 1992);HRL 952702 (4/9/93); 4202.12.2025, HTSUSA.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 953044

                         April 19, 1993

CLA-2 CO:R:C:T 953044 SK

CATEGORY: Classification

TARIFF NO.: 4202.12.2025

S. Richard Shostak
Bruce N. Shulman
Stein Shostak Shostak & O'Hara
1620 L Street, N.W., ste. 807
Washington, D.C. 20036-5605

RE: Reconsideration of HRL 950049 (4/21/92); modified;
classification of plastic lunchbox; Note 2(h) of Chapter 39;
Sports Graphics, Inc. v. U.S., Slip. Op. 92-192 (Oct. 20, 1992);
HRL 952702 (4/9/93); 4202.12.2025, HTSUSA. 


Dear Messrs. Shostak and Shulman:

     This is in reply to your letter of November 13, 1992,
requesting this office to reconsider Headquarters Ruling Letter
(HRL) 950099, issued to you on behalf of your client, Industrias
Diza S.A. de C.V., on April 21, 1992.  That ruling classified a
plastic lunchbox with thermos bottle as a container similar to
those of heading 4202 of the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA).  

FACTS:

     The article at issue is a plastic lunchbox with metal clasps
and metal band hinges.  It contains an eight ounce uninsulated
thermos bottle with pour spout.

     HRL 950049 classified the article at issue under subheading
4202.99.0000, HTSUSA, as a container similar to those set forth
in heading 4202.  You submit that the proper classification of
this article is under heading 3924, HTSUSA, as tableware,
kitchenware, other household and toilet articles, of plastic.

ISSUE:

     Is the plastic lunchbox at issue properly classifiable under
heading 4202, HTSUSA, or under headings 3923 or 3924, HTSUSA?



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LAW AND ANALYSIS:

     Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's).  GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relevant section or chapter notes.  Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's applied, as
appropriate, in sequential order.

     Heading 4202, HTSUSA, provides for: "[T]runks, suitcases,
vanity cases, attache cases, briefcases, school satchels,
spectacle cases, binocular cases, camera cases, musical
instrument cases, gun cases, holsters and similar containers ..." 
Our first inquiry is whether the lunchbox at issue is ejusdem
generis with the articles specifically provided for in this
heading.  In the past, Customs has consistently held that plastic
lunchboxes were classifiable under heading 4202, HTSUSA.  See,
HRL's 088472 (August 17, 1992); 087281 (October 29, 1990); 082488
(February 21, 1992).  Each of these rulings held that the plastic
lunchbox there in question was ejusdem generis with the articles
set forth in heading 4202.  In HRL 087281, this office stated:
"While the lunchbox allows for 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."  In HRL
088472, Customs stated: "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."

     Chapter Note 2(h) of Chapter 39, HTSUSA, excludes from
coverage within this chapter: (h) Saddlery or harness (heading
4201) or trunks, suitcases, handbags or other containers of
heading 4202." [emphasis added].  As the lunchbox at issue is 
similar to the containers set forth in heading 4202, HTSUSA, it
cannot be classified under Chapter 39 by mandate of the Chapter
Note set forth above. 

     Moreover, as noted in HRL 952702, dated April 9, 1993,
heading 3923, HTSUSA, provides for articles of plastic used for
the conveyance or packing of goods, and has been determined to
apply to articles that convey or transport goods.  Heading 3924,
HTSUSA, which covers plastic tableware, kitchenware, other
household articles and toilet articles, has been determined to
apply only to articles used in the home and therefore "reference
to the term 'luncheon box' in the Explanatory Notes to heading
3924 has been determined to apply to a container designed to 



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store and protect food and luncheon meats while in the home." 
See HRL's 087281 and 088472.

     In your submission to this office, you assert that the
recent Court of International Trade decision in Sports Graphics,
Inc. v. United States, 88-08-00656, Slip. Op. 92-192 (CIT October
20, 1992), lends support to your position that the lunchbox at
issue is not classifiable under heading 4202, HTSUSA, and is more
appropriately provided for in heading 3924, HTSUSA.  This office
disagrees with this presumption for several reasons and we 
follow our earlier analysis set forth in HRL 952702 which states:

          "First, Sports Graphics was decided by the court's
           application of General Interpretive Rule 10(e),
           TSUS (Tariff Schedules of the United States).  That
           is, the court found that the 'chief use' of the 
           lunchbox was to prepare, serve, and store food and
           beverages.  Consequently, the court held that the
           appropriate classification was item 772.15 (or 
           772.16), TSUS, which covered, in part, articles
           chiefly used for preparing, serving, or storing food  
           or beverages, or food or beverage ingredients.
           General Interpretive Rule 10(e), TSUS, was not
           carried over into the HTSUSA ... 'chief use' is not a
           basis for classification determinations under the     
           HTSUSA.  ('Principle use' is a concept under the      
           Additional U.S. Rules of Interpretation, but it is not 
           relevant here.)

           Second, the choice presented to the court in Sports
           Graphics was between classification under the tariff
           provision for luggage, item 706, TSUS, or             
           classification under item 772, TSUS, as above.  Given
           these options, the court's determination of chief use
           was conclusive.  In the instant case, the choice
           presented does not include an option for a HTSUSA     
           provision covering articles used to prepare, serve,
           and store food or beverages.  The part of item        
           772.15/15, TSUS, that applied to articles used for
           these purposes was not carried over to the HTSUSA.
           Thus, under the HTSUSA, the issue addressed by the 
           court in Sports Graphics is not relevant to the
           instant case and the decision there made is not
           applicable as precedent in determining the instant
           question.

           The choice here under the HTSUSA is between heading   
           4202 and heading 3924.  This choice presents an




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           entirely different case than that which was presented
           in Sports Graphics.  The court's holding that the
           lunchbox there should be classified under item        
           772.15/16, TSUS, is not authority for the proposition
           that heading 3924 should prevail over heading 4202 
           under the HTSUSA."
          
     For the aforementioned reasons, this office concludes that
the lunchbox at issue was properly classified in HRL 950049 as a
container similar to those of heading 4202, HTSUSA.  We note,
however, that classification under 4202.99.0000, HTSUSA, is a
residual subheading and does not provide for the subject
merchandise as specifically as does subheading 4202.12.2050,
HTSUSA, which covers articles such as trunks, suitcases, vanity
cases, attache cases, briefcases and similar containers with
outer surface of plastics.  Accordingly, classification is proper
under the latter subheading.

HOLDING:

     HRL 950049 is modified to reflect the following
classification: the plastic lunchbox at issue is classifiable as
a container similar to those of heading 4202, HTSUSA.  It is
classifiable under subheading 4202.12.2025, HTSUSA, which
provides for, in pertinent part, trunks, suitcases, vanity cases,
attache cases, briefcases, school satchels, spectacle cases,
binocular cases, camera cases, musical instrument cases, gun
cases, holsters and similar containers; with outer surface of
plastics or of textile materials: with outer surface of
plastics... other, dutiable at a rate of duty of 20 percent ad
valorem.

     The designated textile and apparel categories may be
subdivided into parts.  If so, the visa and quota requirements
applicable to the subject merchandise may be affected.  Since
part categories are the result of international bilateral
agreements which are subject to frequent renegotiations and
changes, to obtain the most current information available we
suggest your client check, close to the time of shipment, the
Status Report on Current Import Quotas (Restraint Levels), an
internal issuance of the U.S. Customs Service which is updated
weekly and is available for inspection at the local Customs
office.

     Due to the nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint 





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(quota/visa) categories, your client should contact the local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.

     In order to ensure uniformity in Customs' classification of
this merchandise and eliminate uncertainty, pursuant to section
177.9(d)(1), Customs Regulations (19 CFR 177.9(d)(1)), HRL 950049
is modified to reflect the above classification effective with
the date of this letter.  

     This modification is not retroactive.  However, for the
purposes of future transactions, HRL 950049 will not be valid for
importations of the subject merchandise arriving in the United
States after the date of this notice.  We recognize that pending
transactions may be adversely affected (i.e., merchandise
previously ordered and arriving in the United States subsequent
to this modification will be classified accordingly).  If it can
be shown that your client relied on HRL 950049 to his detriment,
you may apply to this office for relief.  However, you should be
aware that in some instances involving import restraints, such
relief may require separate approvals from other government
agencies.

     

                               Sincerely,



                               John Durant, Director
                               Commercial Rulings Division