HQ 963468

March 22, 2002

CLA-2 RR:CR:TE 963468 SG

CATEGORY: Classification

TARIFF NOS.: 4819.20.0040; 4901.10.0040

Port Director

U S. Customs

1901 Cross Beam Drive

Charlotte, NC 28217

RE: Application for Further Review of Protest Number 4909-99-100061;

Tariff Classification of a Folding Carton; La Sorpresa Lunch Box;
Heading 4819, HTSUS; Story Cards; Picture Books; Heading 4901, HTSUS

Dear Sir:

This is in reply to the Application for Further Review of Protest
4909-99-100061 that you forwarded to our office for review. The protest
was timely filed by the importer, Case Dunlap Enterprises, Inc., against
the liquidation of paperboard containers described as \"La Sorpresa
lunch boxes\" imported from the United Kingdom.

FACTS:

The merchandise in question consists of a paperboard folding container
that will be used as a \"lunch box\" by Churchs Chicken®, a fast food
company, and a \"story card.\" The container is six sided and measures
approximately 6 inches high when the lid is closed, and approximately 6
inches by 4 inches at the base and top. Flat and folded, it measures 10
inches by 7 1/2 inches. It is colored and surface-decorated with the
names \"La Sorpresa\" and \"Churchs Chicken®\" and pictures of what
appear to be games that children can play, using a crayon. After
importation and assembly, fast food and the \"story card\" will be
inserted into the container for retail sale.

A portion of the imported merchandise appears to have been \"story
cards\", which when folded resembles a small children\'s picture book.
It is made from a rectangular piece of paperboard, measuring
approximately 3 inches by 16 inches. The rectangle is divided into six
squares, each approximately 2 1/2 inches on a side

and separated by an \"accordion\" style fold. Each section is printed
with a picture and simple text describing the picture. The completed
folded article measures 3 inches by 5 inches, and is approximately 1/16
inch high.

We are advised that the boxes are marketed through a \"foodservice\"
catalogue as part of a wide range of paperboard disposable products. The
manufacturer states that the containers are substitutes for plates or
bowls and that kids eat their food out of them. We are further advised
that food establishments (in this case Churchs Chicken®) use them as a
marketing devise by serving burgers, sandwiches, chicken and snacks in
the boxes along with giveaway items that might be a toy, or in this
case, a \"story card.\"

Customs classified both the folding carton and the \"story card\" as
folding cartons under subheading 4819.20.0040 of the Harmonized Tariff
Schedule of the United States (HTSUS). The protestant claims that the
folding container is a lunchbox classifiable either under subheading
4823.60.0040, HTSUSA, as paperboard articles, other, or under subheading
4823.90.6500, HTSUSA, as other, other; and that the correct
classification for the \"story card\" is in heading 4903, HTSUS.

At the time of liquidation, merchandise classifiable under subheading
4819.20, HTSUS, was subject to 100 percent ad valorem duties imposed on
a list of products of certain member states of the European Community
(EC) as a result of the EC's failure to implement the recommendations
and ruling of the World Trade Organization (WTO) Dispute Settlement Body
concerning the EC's regime for the importation, sale and distribution of
bananas.

The termination of increased duties is effective with respect to
articles entered, or withdrawn from warehouse, for consumption, on or
after July 1, 2001, except that the termination of increased duties on
subheading 4911.91.2020, HTSUSA, is effective with respect to articles
entered, or withdrawn from warehouse, for consumption, on or after March
3, 1999, for which unliquidated entries or entries subject to timely
protest are pending before Customs.

ISSUE:

What is the correct tariff classification of the folding lunch box
container and \"story card\" described above?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General
Rules of Interpretation (GRI). GRI 1 provides that the classification of
goods shall

be determined according to the terms of the headings of the tariff
schedule and any relative Section or Chapter Notes. In the event that
the goods cannot be classified

solely on the basis of GRI 1, and if the headings and legal notes do not

otherwise require, the remaining GRI may then be applied.

In interpreting the headings and subheadings, Customs looks to the
Harmonized Commodity Description and Coding System Explanatory Notes
(EN), which are not legally binding, but are recognized as the official
interpretation of the

Harmonized System at the international level. It is Customs practice to
follow, whenever possible, the terms of the EN when interpreting the
HTSUS.

Heading 4819 encompasses:

Cartons, boxes, cases, bags and other packing containers, of paper,
paperboard, cellulose wadding or webs of cellulose fibers; box files,
letter trays, and similar articles, of paper or paperboard of a kind
used in offices, shops or the like.

The EN to the first part of the heading (before the semicolon) covering
"Cartons, boxes, cases and other packing containers" reads:

This group covers containers of various kinds and sizes generally used
for the packing, transport, storage or sale of merchandise, whether or
not also having a decorative value. The heading includes cartons, boxes,
cases, bags, cones, packets, casks, paperboard drums (containers),
whether manufactured by rolling or by any other method, and whether or
not fitted with reinforcing circular bands of other materials, tubular
containers for

posting documents, protective garment bags, jars, pots and the like
(e.g., for milk or cream), whether or not waxed. The heading also covers
special purpose paper bags such as bags for vacuum cleaners, bags for
travel sickness, and record boxes and sleeves.

The EN to heading 4819 states that folding cartons, boxes and cases are:

Cartons, boxes and cases in the flat in one piece, for assembly by

folding and slotting (e.g., cake boxes); and containers assembled or
intended to be assembled by means of glue, staples, etc., on one side
only, the construction of the container itself providing the means of
forming the other sides, although, where appropriate, additional means
of fastening, such as adhesive tape or staples may be used to secure the
bottom or lid.

Counsel argues that the lunchbox is intended to temporarily store items
(food and giveaway articles) as opposed to the primary headnote
definition of \"packaging\", and therefore it is not a folding carton,
box or case under subheading

4819.20, HTSUS. In support thereof, protestant states that the lunch
boxes are used for promotional purposes, by fast food chains, and are
not designed or intended for durable or long-term use as packaging
materials cited in heading 4819. In support thereof he cites two
headquarters rulings (HQ 084679, dated September 20, 1989 and HQ 083060,
dated March 14, 1990) that are felt to mirror his feeling that the
merchandise in question is \"not simply to pack them.\"

In our opinion, the lunch box meets the terms of subheading 4819.20,
HTSUS. It is in one piece (single sheet of paperboard) and is imported
in a flattened, prefolded or creased condition. It is assembled into a
shaped box by gently pressing the prefolded sides and inserting the
slotted tabs into the top and bottom of the carton. The box is used in
the storage and sale of merchandise. Moreover, there is no limiting
language in the tariff provision or legal notes to preclude
classification in subheading 4819.20, HTSUS, where, as in this case, the
carton is intended to temporarily store items (food and giveaway
articles) and not to pack them. In addition, the two rulings cited by
protestant (HQ 084679 and HQ 083060) deal with paperboard boxes covered
with either textile flocked paper or fabric, and classified under
subheading 4823.90, HTSUS, as articles of paper or paperboard. They were
both general purpose boxes designed to hold and store a variety of items
(jewelry, make-up, knick knacks). Neither box folded. They are
distinguished from the merchandise at issue here. We find that the
folding container (lunch box) at issue here is the type of merchandise
covered by the first part of heading 4819, HTSUS, and more specifically,
as a folding carton in subheading 4819.20.0040, HTSUSA.

The lunch box is imported unassembled along with a folding \"story
card.\" Protestant claims that the merchandise is a folding \"story
card\" for children which when folded resembles a book, and as such that
the correct classification for the \"story card\" is in subheading
4903.00.0000, HTSUSA.

The tariff heading proposed, provides for the following:

4903 Children\'s picture, drawing or coloring books.

With regard to heading 4903, HTSUS, the Legal Notes to chapter 49,
HTSUS, include the following:

6\. For the purpose of heading 4903, the expression \"children\'s
picture books\" means books for children in which the pictures form the
principal interest and the text is subsidiary.

We agree that the subject merchandise contains pictures which form the
principal interest for a child, that the article is intended for
children, and that certain topics could be presented in a series of
episodic pictures to form a continuing story line. All of these things
are required for classification of merchandise in heading 4903, HTSUS.
However, these requirements refer only to content based

distinctions which serve to separate \"children\'s books\" from other
books classified in headings of chapter 49, HTSUS. They do not in any
way suggest that Customs

should depart from classifying as a \"book\" any article which does not
meet the common and commercial meaning of the term with regard to the
item\'s physical characteristics.

The [Oxford English Dictionary]{.underline} defines \"book\" as:

a\. spec. (In reference to modern things) Such a treatise occupying
numerous sheets or leaves fastened together at one edge called the back,
so as to be opened at any particular place, the whole being protected by
binding or covers of some kind. . .

b\. The material article so made up, without regard to the nature of its
contents, even though its pages are occupied otherwise than with writing
or printing, or are entirely blank. . .

We find that such a definition embodies the common perception of a
\"book\" in a physical sense. The drafters of the nomenclature, when
composing chapter 49, HTSUS, and its associated notes, may not have
defined the term \"book\" because it is a word of common usage. The
protest suggests that the absence of any restrictive language regarding
the form of \"books\" permits an expansive reading of that term. In
other words, that unbound books may be included in heading 4903, HTSUS.
We do not agree. To assign a tariff term any meaning other than the
common or commercial meaning (which is presumed to have been known by
Congress when the tariff was enacted) would require some proof that
Congress intended to incorporate such other definition. No evidence was
submitted to suggest that Congress so intended, and we have not found an
expression of such an intention. Therefore, we find that a \"book\"
classifiable in heading 4903, HTSUS, is composed of numerous sheets or
leaves, fastened or bound together \"so as to be opened at any
particular place.\" We find that the use of the term \"book\" implies
that a binding or fastening must be present.

For the purposes of determining whether an article is a \"book\", we
find that binding must comprise more than simply fastening together
sheets, pages or leaves. It should consist of a fastening or binding
along one edge or spine, as a traditional example of traditional
bookbinding would exhibit.

Based on the above, we find that the \"story card\" does not meet the
definition of a book. Although the merchandise is not a book, it is
still considered similar printed matter for tariff purposes and is
classified in subheading 4901.10.0040, HTSUSA.

HOLDING:

The \"story card\" at issue, printed matter for children, composed of a
printed rectangle divided into squares separated by an \"accordion\"
style fold, is classified as similar printed matter under the provision
for \"(p)rinted books, brochures, leaflets and similar printed matter,
whether or not in single sheets: In single sheets, whether or not
folded; Other\", in subheading 4901.10.0040, HTSUSA. There is no duty or
textile visa category associated with this classification.

The folding container is classifiable under subheading 4819.20.0040,
HTSUSA, as an other folding carton of paperboard. Articles classifiable
under that tariff provision were subject to 100 percent duty at the time
of importation under subheading 9903.08.10, HTSUSA, pursuant to
temporary trade legislation.

Therefore, based on the foregoing, you are instructed to DENY the
protest in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division