HQ 964234

April 23, 2001

CLA-2 RR:CR:TE 964234 jsj

CATEGORY: Classification

TARIFF NO.: 4202.19.0000

Ms. Kathy M. Belas

James G. Wiley Co.

P.O. Box 90008

Los Angeles, California

90009-0008

Re: Classification of "lunch tote"; Subheading 4202.19.0000, HTSUSA.

Dear Ms. Belas:

The purpose of this correspondence is to respond to your request of May
10, 2000, directed to the New York office of the U.S. Customs Service.
The correspondence in issue requested, on the behalf of your client
Dorothy Thorpe / Christmas Corner, a binding classification ruling of
the item described as a "lunch tote."

A sample was provided along with a card identifying the item as a "lunch
tote," style 10370. The card additionally indicated that the merchandise
is a product of China. The sample will be returned in accordance with
your request.

This ruling letter is being issued subsequent to a review of your
correspondence of May 10, 2000, and a telephone conference conducted
with a member of my staff on September 1, 2000.

FACTS

The article submitted for consideration has the shape of a traditional
school lunch box and measures seven and one-half (7 1/2) inches in
length, three and one-eighth (3 1/8) inches in width and has a height of
five and one-eighth (5 1/8) inches. It is composed of metal believed by
the Customs Service to be sheet steel that may or may not be tin-plated.
The request you submitted suggests that the item is made of tin. No
laboratory analysis has been performed to determine its precise
composition.

The "lunch tote" has a plastic handle on top that swivels side to side.
One side of the item opens and may be secured closed by a latch on the
top. Attachments for a shoulder strap are located on the narrow or width
sides, one and one-half (1 1/2) inches from the top. No shoulder straps
accompanied the sample. It is not insulated and does not have an
accompanying container or interior attachment designed to facilitate the
transportation and storage of liquids.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule
of the United States Annotated, of the above-described multiple-use,
metal-sided, hinged container possessing a handle and identified as a
"lunch tote" ?

LAW AND ANALYSIS

The classification of imported merchandise pursuant to the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI). GRI 1 provides that
classification decisions are to be "determined according to the terms of
the headings and any relative section or chapter notes." The subsequent
General Rules of Interpretation are to be consulted only if an analysis
of the headings, section and chapter notes, in accordance with the
dictates of GRI 1, proves inadequate to classify the merchandise.

The principal HTSUSA headings considered by the Customs Service in
rendering this Ruling Letter are: (1) Heading 4202, HTSUSA; and (2)
Heading 7326, HTSUSA. Heading 4202 of Chapter 42, *Articles of Leather;
Saddlery and Harness; Travel Goods, Handbags and Similar Containers;
Articles of Animal Gut (Other than Silkworm Gut)*[^1], provides:

4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school
satchels, spectacle cases, binocular cases, camera cases, musical
instrument cases, gun cases, holsters and similar containers; traveling
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.

Heading 7326 of Chapter 73, *Articles of Iron or Steel*[^2], provides:

7326 Other articles of iron or steel.

Heading 4202, HTSUSA, provides for the classification of two primary
groups of merchandise: "\[t\]runks, suitcases, vanity cases, attache
cases, briefcases, school satchels, spectacle cases, binocular cases,
camera cases, musical instrument cases, gun cases, holsters and similar
containers" *and* "traveling 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." The two groups of items
enumerated in heading 4202, HTSUSA, are separated by a semicolon.

The significance of the semicolon in separating the two parts of heading
4202, HTSUSA, is explained in the Explanatory Notes (EN) to the
Harmonized Commodity Description and Coding System. The Explanatory
Notes constitute the official interpretation of the Harmonized System at
the international level. The EN, although neither legally binding or
dispositive of classification issues, do provide commentary on the scope
of each heading of the HTSUSA and are generally indicative of the proper
interpretation of the headings. *See* T.D. 89-80, 54 Fed. Reg. 35127-28
(Aug. 23, 1989).

The EN to heading 4202, HTSUSA, provides that the "articles covered by
the first part of the heading may be of any material." *Explanatory Note
42.02*. The first part of heading 4202, HTSUSA, is that part of the
heading that precedes the semicolon. The EN continues by explaining that
the articles enumerated in "the second part of the heading must,
however, be only of the materials specified therein." *Explanatory Note
42.02*.

The container in issue, a multiple-use, metal-sided, hinged box with a
handle, referred to as a "lunch tote," is *ejusdem generis* or "of the
same kind" of containers enumerated in the first part of heading 4202,
HTSUSA. *See Sports Graphics, Inc. v. United States*, 24 F.3d 1390, 1392
(Fed. Cir. 1994) (discussing the statutory construction concept of
*ejusdem generis*). The containers in the first part of heading 4202,
HTSUSA, "\[t\]runks, suitcases, vanity cases, attache cases, briefcases,
school satchels and similar containers" are designed to organize, store,
protect and carry various items during travel. *See* *Totes, Inc. v.
United States*, 69 F. 3d 495 (Fed. Cir. 1995), HQ 953663. Since the
"lunch tote" is similar to the containers enumerated *eo nomine* in the
first part of heading 4202, HTSUSA, the material of which it is composed
is not of consequence.

The Customs Service, prior to concluding its legal analysis of the
instant merchandise, reviewed the decision of *SGI , Inc. v. United
States*, 122 F.3d 1468 (Fed. Cir. 1997). The Court in *SGI* was called
on to address the classification of portable soft-sided vinyl coolers
possessing insulative properties similar to both hard and other
soft-sided coolers having a one-half inch thick closed cell polyethylene
foam insulation used solely for the preservation and storage of food or
beverages. The merchandise under classification in this ruling letter is
a metal-sided, hinged box with a handle, that has multiple uses, one of
which happens to be as a lunch box. It is the conclusion of the Customs
Service, subsequent to considering the multiple uses of the item in
issue, that the decision of the court in *SGI* does not have precedental
weight with regards to multiple use, metal-sided, hinged boxes
possessing handles.

The "lunch tote" submitted for classification is similar in shape and
utility to a traditional lunch box, although smaller. The Customs
Service has previously addressed the classification of multiple-use,
metal-sided, hinged containers or lunch boxes with handles and has
consistently ruled, as stated above, that they are, for classification
purposes, similar to the items in the initial part of heading 4202,
HTSUSA, trunks, suitcases, vanity cases, attache cases, briefcases and
school satchels. *See* HQ 961707 (Mar. 19, 1999); HQ 953663 (May 21,
1993); HQ 953044 (April 19, 1993); and HQ 952702 (April 9, 1993).

The principle distinction between the article in issue, the "lunch
tote," and the lunch boxes addressed in prior ruling letters, as
previously stated, is size. The "lunch tote" is smaller, although on
further examination not significantly smaller.

It is the size of the "lunch tote" that prompted a review of heading
7326, HTSUSA, and particularly subheading 7326.90.3500, HTSUSA. It
should be recalled that the precise composition of the "lunch tote" has
not been established. Prior to classifying the "lunch tote" in heading
7326, HTSUSA, as an article of iron or steel, the Customs Service would
have undertaken a laboratory analysis.

The application of GRI 1 dictates that classification decisions begin
with an examination of the headings. It is the conclusion of the Customs
Service that heading 4202, HTSUSA, more specifically describes the
"lunch tote" than heading 7326, HTSUSA. A review of subheading
7326.90.3500, HTSUSA, is, however, being undertaken to specifically
address the classification suggested by the importer and customs broker.

Subheading 7326.90.3500, HTSUSA, provides:

7326. Other articles of iron or steel:

      90. Other:

          3500. Other:

> Containers of a kind normally carried on the person, in the pocket or
> in the handbag.

A review of ruling letters classifying merchandise in subheading
7326.90.3500, HTSUSA, as containers of iron or steel, normally carried
on the person, in the pocket or in the handbag, revealed articles that
were smaller in size than the "lunch tote" and articles whose utility
was more limited or narrow. The research revealed: (1) A compact disc
carrying case that measured six (6) inches by six and one-half (6 1/2)
inches and was designed to carry eight compact discs, *See* NY E82060
(June 1, 1999); (2) Two pencil cases that measured eight (8) inches in
length, three (3) inches in width and one (1) inch in height, and eight
(8) inches in length and two (2) inches in width, respectively, *See* NY
A80439 (Feb. 26, 1996) and NY E81700 (July 19, 1999); (3) A hip flask
designed to hold four liquid ounces, *See* NY D80042 (July 22, 1998);
and (4) A pill-box shaped tin that measured one and one-half (1 1/2)
inches in diameter and three-fourths (3/4) of an inch in depth, *See* NY
C88472 (June 24, 1998).

Chapter 74 of the HTSUSA, *Cooper and Articles Thereof*, and in
particular subheading 7419.99.1500, HTSUSA, were also reviewed because
subheading 7419.99.1500, HTSUSA, like subheading 7326.90.3500, HTSUSA,
also addresses "containers of a kind normally carried on the person, in
the pocket or in the handbag." This examination was undertaken to
thoroughly review rulings that might prove beneficial in understanding
the phrase "containers of a kind normally carried on the person,"
although neither the Customs Service nor the importer suggest that the
"lunch tote" is composed of copper.

The ruling letters addressing Chapter 74 containers of a kind normally
carried on the person revealed: (1) A business card holder that measured
two (2) inches by four (4) inches, *See* NY C81773 (Nov. 17, 1997); (2)
A toothpick holder that measured three and one-half (3 1/2) inches in
length and one-half (1/2) inch in diameter, *See* NY F 8382 (Mar. 24,
2000); and (3) A pillbox for which dimensions were not provided. *See*
NY D86338 (Jan. 7, 1999).

The conclusion reached by the Customs Service is that the "lunch tote"
is more analogous in size and utility to the *eo nomine* articles of
heading 4202, HTSUSA, than to other articles of iron or steel of
residual heading 7326, HTSUSA. The "lunch tote," although smaller than a
traditional lunch box, still functions as a convenient method of
transporting food and beverages in addition to having the capability of
transporting other personal effects.

A New York Ruling Letter that requires distinction is NY A80887 (Mar.
13, 1996) in which a "lunch box handbag" was classified in subheading
7326.90.3500, HTSUSA, as an article of steel, tinplated, normally
carried on the person. The physical dimensions of the "lunch box
handbag," as set forth in the ruling letter, are similar to those of a
traditional lunch box. The ruling letter additionally stated that the
item was designed to resemble a lunch box.

A review of Customs Service records established that the article in
issue in NY A80887 was not a lunch box but was, rather, a handbag or
purse. The item was marketed as a handbag. The style of painting, the
decorative and color-coordinated shoulder strap and fancy metal latches
were all indicative of a handbag.

HOLDING

The multiple-use, metal-sided, hinged container with a handle,
identified as a "lunch tote," is classified in subheading 4202.19.0000,
HTSUSA.

The General Column One Rate of Duty is twenty (20) percent *ad valorem*.

Sincerely,

John Durant, Director

Commercial Rulings Division

[^1]: Titles of chapters are provided for ease of reference only.
    General Rule of Interpretation 1.

[^2]: *See* id.