HQ 963539

April 12, 2002

# CLA-2 RR:CR:TE 963539 jsj

CATEGORY: Classification

TARIFF NO.: 7326.90.1000

Port Director

U.S. Customs Service

Second and Chestnut Streets

Philadelphia, Pennsylvania

19106

Attention: Team 172

Re: Application for Further Review of Protest No.: 1101-99-100235

Lunch Box Style Metal Containers; Round Metal Containers; Dog Bone
Shaped

Metal Containers; Tinplated Iron or Steel; Subheading 7326.90.1000,
HTSUS.

Dear Port Director:

The purpose of this correspondence is to address the Application for
Further Review of Protest Number: 1101-99-100235, dated September 9,
1999. The Importer of Record and Protesting Party is American Specialty
Confections, Inc.

The Customs Service issued a Notice of Action (Customs Form 29) to
American Specialty Confections, Inc. (American Specialty Confections).
The Notice of Action is dated May 21, 1999. It indicated that a rate
advance had been taken based on the conclusion of the Customs Service
Import Specialist that the Importer had not properly classified "lunch
boxes."

The Importer, subsequent to receipt of the Notice of Action and
liquidation, filed a Protest challenging Customs classification.
American Specialty Confections' Protest accompanied an Application for
Further Review that was approved. The Importer's application for further
review was based on 19 C.F.R. 174.24(a), which provides for further
review when the decision of the port is alleged to be inconsistent with
a Headquarters ruling or a decision made at any port concerning the same
or substantially similar merchandise.

A review of the Protest (Customs Form 19) and the Customs Protest and
Summons Information Report (Customs Form 6445) indicates that the
protest was timely filed pursuant to 19 U.S.C. 1514 (c) (3) (West 1999)
and 19 C.F.R. 174.12 (e) (1). The Protest was filed on September 9,
1999, within ninety days of the liquidation of the entries.

This protest decision is being issued subsequent to the following: (1) A
review of the Protest; (2) A review of the Customs Protest and Summons
Information Report; (3) A review of the submission of counsel for the
Importer dated August 29, 2000; (4) A review of the facsimile submission
received from the Customs broker for the Importer on January 29, 2002;
(5) A review of the samples; and (6) A review of the American Specialty
Confections sales and marketing literature, particularly its 1999
catalogue.

FACTS

The articles in issue are threefold: (1) Metal containers with handles
and latches in the shape of traditional school lunch boxes, only
smaller; (2) Metal containers with handles and latches that are round
with flat bottoms; and (3) Metal containers in the shape of dog bones
that do not have handles or latches.

Traditional School Lunch Box Shaped Containers:

The metal containers in the shape of traditional school lunch boxes
measure seven and five-eighths (7 5/8) inches in width, six (6) inches
in height and two and seven-eighths (2 7/8) inches in depth. They have
flat plastic handles that are attached to the top of the container and
swivel from side to side. One of the sides of the containers opens
outward by means of two loop-style hinges on the bottom. The opening
secures closed through the use of a metal clasp on the top.

The containers are made of tinplated steel, however, they are not
constructed for long-term or rigorous use. The handle hinges and the
metal clasp are not designed or constructed for significant wear.

The containers will be painted with various motifs. The traditional
school lunch box styles in issue in this Protest, as identified by the
Protestant, include: (1) Bazooka Lunch Box, Item Number: 88097T; (2)
Candyland Lunch Box, Item Number: 88075T; (3) GI Joe Ast. Lunch Box,
Item Number: 88187T; (4) GI Joe Frogman Lunch Box, Item Number: 88186T;
(5) Howdy Doody Lunch Box, Item Number: 88189T; (6) Curious George
Bicycle, Item Number: 88076T; (7) GI Joe, Item Number: 88072T; (8)
Tootsie Roll, Item Number: 88077T; (9) Pat the Bunny Lunch Box, Item
Number: 88245T; and (10) Dick Tracy Lunch Box, Item Number: 88250T.

Round Containers With Flat Bottoms:

The round metal containers with flat bottoms measure six and one-fourth
(6¼) inches in width, five and three-fourths (5 ¾) inches in height and
three (3) inches in depth. They have round plastic handles that are
attached to the top of the container and swivel from front to back. One
of the sides of the containers opens outward by means of a single
loop-style hinge on the bottom. The opening secures closed through the
use of a metal clasp on the top.

The containers are made of tinplated steel, however, they are not
constructed for long-term or rigorous use. The handle hinges and the
metal clasp are not designed or constructed for significant wear.

The containers will be painted with various motifs. The round containers
with flat bottoms in issue in this Protest, as identified by the
Protestant, include: (1) Betty Boop Round Lunch Box, Item Number:
88188T; and (2) Oreo Round Lunch Box, Item Number: 88067T.

Dog Bone Shaped Containers:

The dog bone shaped metal containers come in two styles: (1) Milk Bone
Shaped Tin, Item Number: 44401T (also identified in the 1999 American
Specialty Confections catalogue as Item Number: 290021); and (2) Snoopy
Bone Shaped Tin, Item Number: 88209T (also identified in the 1999
American Specialty Confections catalogue as Item Number: 882097).

The Milk Bone container measures six and one-fourth (6 ¼) inches in
width, three and one-half (3 ½) inches in height and two and one-fourth
(2 ¼) inches in depth. The Snoopy Bone container measures nine and
one-fourth (9 ¼) inches in width, three (3) inches in height and five
(5) inches in depth.

These containers do not have handles or latches. The top of each
container, with the words "Milk Bone" or "Snoopy," lifts off.

The containers are made of tinplated steel, however, they are not
constructed for long-term or rigorous use.

Customs is advised that the containers will be imported empty. The
traditional school lunch box style and the round style will be filled
with candy or cookies subsequent to importation. The dog bone shaped
containers will be filled with dog treats.

The Customs Service is advised that China is the country of origin of
all of the containers addressed in this Protest decision.

ISSUE

Did Customs properly liquidate the entries in subheading 4202.19.0000,
Harmonized Tariff Schedule of the United States Annotated, based on the
conclusion of the Customs Service Import Specialist that the Importer of
Record had incorrectly entered the above-described metal containers in
subheading 7310.29.0050, HTSUSA, and subheading 7326.90.1000, HTSUSA ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying
the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)
is the U.S. Customs Service.[^1] The Customs Service, in accordance with
its legislative mandate, classifies imported merchandise pursuant to the
General Rules of Interpretation (GRI) and the Additional U.S. Rules of
Interpretation.[^2]

General Rule of Interpretation 1 provides, in part, that classification
decisions are to be "determined according to the terms of the headings
and any relative section or chapter notes." *General Rule of
Interpretation 1*. General Rule of Interpretation 1 further states that
merchandise which cannot be classified in accordance with the dictates
of GRI 1 should be classified pursuant to the other General Rules of
Interpretation, provided the HTSUSA chapter headings or notes do not
require otherwise. According to the Explanatory Notes (EN), the phrase
in GRI 1, "provided such headings or notes do not otherwise require," is
intended to "make it quite clear that the terms of the headings and any
relative Section or Chapter Notes are paramount." *General Rules for the
Interpretation of the Harmonized System, Rule 1, Explanatory Note (V)*.

The Explanatory Notes constitute the official interpretation of the
Harmonized System at the international level. *See* Joint Explanatory
Statement *supra* note 1, at 549. The Explanatory Notes, although
neither legally binding nor dispositive of classification issues, do
provide commentary on the scope of each heading of the HTSUS. The EN's
are generally indicative of the proper interpretation of the headings.
*See* T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); *Lonza, Inc. v.
United States*, 46 F. 3^rd^ 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the traditional school lunch box shaped
containers, the round containers with flat bottoms and the dog bone
shaped containers in accordance with the dictates of GRI 1, the Customs
Service examined the headings of Chapter 73, *Articles of Iron or
Steel*, of the HTSUSA. Customs concludes that all of the containers
subject to this protest are properly classified in heading 7326, HTSUSA,
pursuant to GRI 1. Heading 7326, HTSUSA, more specifically than any
other heading in the tariff schedule, describes the containers.

Customs notes that heading 7326, HTSUSA, is a residual or basket
provision into which merchandise of iron or steel not described by any
other heading of Chapter 73 is classified. Although the classification
decision arrived at by this office relies on General Rule of
Interpretation 1, this determination was made by a process of
elimination, only subsequent to considering all of the headings of
Chapter 73, particularly headings 7310, HTSUSA, and 7323, HTSUSA.

Heading 7310, HTSUSA, provides for "Tanks, casks, drums, cans, boxes and
similar containers, for any material (other than compressed or liquefied
gas), of iron or steel, of a capacity not exceeding 300 liters, whether
or not lined or heat insulated, but not fitted with mechanical or
thermal equipment." The EN to heading 7310, HTSUSA, Explanatory Note
73.10, provides an illustrative list of "larger containers," as well as
"smaller containers" that are properly classified in heading 7310,
HTSUSA. *Explanatory Note 73.10*. The smaller containers, relevant to
this protest, "include boxes, cans, tins, etc." and are "mainly used as
sales packings for butter, milk, beer, preserves, fruit or fruit juices,
biscuits, tea, confectionery, tobacco, cigarettes, shoe cream,
medicaments, etc." *Explanatory Note 73.10*.

Although the containers subject to this protest fall within the EN
description of "boxes, cans, tins, etc.," they are not "mainly used as
sales packings." *Explanatory Note 73.10*. The containers in issue,
although intended to be used by the importer as packing for candy or
other edibles for people or animals, have uses beyond sales packing. The
Importer's submission that accompanied its Protest refers to the
containers as collectibles and an examination of its catalogue suggests
that the containers have intended uses beyond packing. Customs will not
suggest the numerous uses to which these containers may be put, but is
of the conclusion that these containers are significantly more that
sales packing. *See generally* HQ 963670 (April 12, 2002) (discussing
merchandise classified in heading 7310, HTSUSA, and providing a list of
precedential Customs Service ruling letters).

Heading 7323, HTSUSA, provides, in pertinent part, for the
classification of "Table, kitchen or other household articles and parts
thereof, of iron or steel." The Explanatory Notes to heading 7323,
HTSUSA, state that this heading "comprises a wide range of iron or steel
articles...used for table, kitchen or other household purposes."
*Explanatory Note 73.23*. The EN further provides an extensive list of
articles considered being for kitchen, table and other household uses.
*See Explanatory Note 73.23*. Kitchen articles include items "such as
saucepans, steamers...; frying pans...; kettles; colanders; ...jelly and
pastry moulds;...kitchen storage tins and canisters...funnels."
*Explanatory Note 73.23(A)(1)*. Articles for table use include "trays,
dishes, plates...sugar basins, butter dishes...coffee pots...tea pots;
cups, mugs...cruets; knife rests;...serviette rings, table cloth clips."
*Explanatory Note 73.23(A)(2)*. Items enumerated as "other household
articles" encompass articles such as "wash coppers and boilers;
dustbins, buckets...watering cans; ash-trays;...baskets for laundry,
fruit vegetables, etc.; letter-boxes...luncheon boxes." *Explanatory
Note 73.23(A)(1)*.

It is the conclusion of the Customs Service, subsequent to a review of
this list, that the containers subject to this protest are not
analogous. Merchandise properly classified in heading 7323, HTSUSA, is
limited in scope to table, kitchen or other household articles made of
iron or steel. The containers under review in this protest may not
reasonably be described as table, kitchen or household articles. *See
generally* HQ 956218 (Aug. 23, 1994), NY C88472 (June 24, 1998), NY
813291 (Aug. 23, 1995) and NY 808180 (Mar. 24, 1995).

The containers subject to classification consideration in this protest
may be used in the kitchen or around the home, but they are not designed
nor specifically intended for kitchen or household use. Customs also
concludes that they are not table articles.

It is Customs determination that the heading that is most descriptive of
the lunch box style container, the round container and the dog bone
style container is heading 7326, HTSUSA. Heading 7326, HTSUSA, provides
very simply for "Other articles of iron or steel." Heading 7326, HTSUSA,
as previously stated is a residual provision and encompasses the
classification of "all articles of iron or steel...**other than**
articles included in the preceding headings of this Chapter or ...more
specifically covered elsewhere in the Nomenclature." *Explanatory Note
73.26*.

Understanding that heading 7326, HTSUSA, is a residual or basket
provision into which all merchandise properly classified in Chapter 73,
HTSUSA, falls by default when a more descriptive heading in the chapter
does not exist, the variety of iron or steel merchandise that is
properly classified in heading 7326, HTSUSA, is broad. This is confirmed
by a further reading of the Explanatory Notes. The Explanatory Note that
correspond to heading 7326, HTSUSA, Explanatory Note 73.26, offers an
extensive listing of merchandise that is classified in heading 7326,
HTSUSA.

Explanatory Note 73.26 (3) provides that heading 7326, HTSUSA, covers
"Certain boxes and cases, *e.g.*, tool boxes or cases, not specially
shaped or internally fitted to contain particular tools with or without
their accessories (see the Explanatory Note to heading 42.02);
botanists', *etc.*, collection or specimen cases, trinket boxes;
cosmetic or powder boxes and cases; cigarette cases, tobacco boxes,
cachou boxes, *etc.* but **not including** containers of **heading
73.10**, household containers (**heading 73.23**), nor ornaments
(**heading 83.06**). (Emphasis added). The containers subject to this
protest are not easily analogous to the "boxes and cases" specifically
identified in the EN, but this is not necessary. The drafters of the
EN's, by employing the phrases "e.g." and "etc." in EN 73.26, exhibited
an intent that the identified articles were only intended to be
representative or illustrative.

It is the conclusion of the Customs Service that the containers in issue
and the articles identified by example in EN 73.26 share enough common
features to warrant the classification of the containers in heading
7326, HTSUSA. The containers in issue are essentially steel boxes, the
sizes of which according to a reading of EN 73.26 may vary
significantly. The containers are larger than trinket and cachou boxes,
smaller than tool boxes, but are about the size of powder or tobacco
boxes. They are not specially shaped nor are they internally fitted. The
possible uses of the containers are similar to the anticipated uses of
the containers referenced in the EN. They may carry a variety of items,
none of which fall into any particular category that might preclude
classification of the containers in heading 7326, HTSUSA. As should be
appreciated, there is no single example provided for in EN 73.26 to
which Customs may point as the perfect example of a container similar to
those subject to this protest. Customs has, however, demonstrated that
there are a significant number of common characteristics between the
containers in issue and the "boxes and cases" illustrated in Explanatory
Note 73.26 to warrant classification in heading 7326, HTSUSA.

Although Customs has discussed the similarities between the relevant
merchandise and the items identified in the Explanatory Notes to heading
7326, HTSUSA, it is important to remember that since heading 7326,
HTSUSA, is a basket or residual provision it is only necessary to
determine that American Specialty Confections' merchandise is not
excluded from heading 7326, HTSUSA, nor specifically provided for
elsewhere in the tariff schedule. Customs concludes that the merchandise
is not precluded from classification in heading 7326, HTSUSA, nor is it
specifically provided for in another tariff schedule heading.

Continuing the classification of the traditional school lunch box shaped
containers, the round containers with flat bottoms and the dog bone
shaped containers at the subheading level, the containers are classified
in subheading 7326.90.1000, HTSUSA. *See generally* NY H81764 (June 19,
2001), NY F81395 (Jan. 13, 2000) and NY B80840 (Jan. 10, 1997).
Subheading 7326.90.1000, HTSUSA, provides for the classification of

7326 Other articles of iron or steel:

90. Other:

    1000. Of tinplate.

The Customs Service specifically notes for the attention of the importer
and the Customs broker that Customs has not undertaken a laboratory
analysis to confirm that the containers in issue are tinplated. Customs
has relied on the express statements of the Customs broker in the
Protest and the express statements of counsel for the importer in the
submission dated August 29, 2000. Should the containers not prove to be
tinplated, this would significantly impact the classification and rate
of duty of this merchandise and, additionally, bear negatively on the
importer's obligation to use reasonable care in the classification,
value and entry of its merchandise.

Although not raised as an issue in this protest, substantially similar
merchandise is frequently imported with edibles. Headquarters Ruling
Letter 963670 addressed the classification of the containers and the
edibles when imported together. *Supra*.

It is noted that Customs liquidated the entries in subheading
4202.19.0000, HTSUSA. Heading 4202, HTSUSA, provides for the
classification of:

> 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, insulated food or beverage 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 of mainly covered with such materials or with paper.
>
> Customs, during the course of this administrative review, determined
> that the merchandise in issue was not similar to the items designated
> by name in the first part of heading 4202, HTSUSA, that aspect which
> precedes the semi-colon. It was also determined that consideration of
> the items listed in the second part of the heading was unnecessary
> because those articles must be made of specific materials and iron and
> steel, of which the containers are composed, are not enumerated
> materials. Since Customs determined that the metal containers being
> imported by American Specialty Confections were not similar to the
> containers designated *eo nomine* in heading 4202, HTSUSA, Customs
> re-examined the headings of the HTSUSA and has concluded that American
> Specialty Confections' merchandise is properly classified in heading
> 7326, HTSUSA.

The Customs Service is aware of HQ 964234 (April 23, 2001), HQ 961707
(Mar. 19, 1999) and PD C85024 (Mar. 31, 1998) classifying similar metal
containers in Chapter 42, HTSUSA. Customs is re-examining the
classification of this merchandise and considering whether this
merchandise should be classified in heading 7326, HTSUSA, of Chapter 73.
If a decision is made to re-classify the merchandise addressed in the
identified ruling letters, the Customs Service will proceed in
accordance with 19 U.S.C. 1625 (c).

HOLDING

The Protest is ALLOWED.

The traditional school lunch box shaped containers, the round containers
with flat bottoms and the dog bone shaped containers are classified in
subheading 7326.90.1000, Harmonized Tariff Schedule of the United States
Annotated.

The General Column 1 Rate of Duty is FREE.

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

The Office of Regulations & Rulings will make this decision available to
Customs personnel and to the public on the Customs Service Home Page on
the World Wide Web, www.customs.gov, by means of the Freedom of
Information Act

and by other methods of public distribution sixty days from the date of
this decision.

Sincerely,

John Durant, Director

Commercial Rulings Division

[^1]: *See* 19 U.S.C. 1500 (West 1999) (providing that the Customs
    Service is responsible for fixing the final appraisement,
    classification and amount of duty to be paid); *See also* Joint
    Explanatory Statement of the Committee of Conference, H.R. Conf.
    Rep. No. 100-576, at 549 (1988) *reprinted in* 1988 U.S. Code Cong.
    and Adm. News 1547, 1582 \[hereinafter Joint Explanatory
    Statement\].

[^2]: *See* 19 U.S. C. 1202 (West 1999); *See generally, What Every
    Member of The Trade Community Should Know About: Tariff
    Classification*, an Informed Compliance Publication of the Customs
    Service available on the World Wide Web site of the Customs Service
    at www.customs.gov, search "Importing & Exporting" and then "U.S.
    Customs Informed Compliance Publications."