February 10, 2010 CBP Bulletin Notice on Classification of "Shamu Snak Pak" Plastic Food Container

In the February 10, 2010 issue of the U.S. Customs and Border Protection Bulletin (Vol. 44, No. 7), CBP published a notice proposing to revoke two rulings and a treatment as follows:

Proposed revocation of rulings; proposed revocation of treatment. CBP is proposing to revoke two rulings on the classification of certain "Shamu snak pak" plastic food containers. Additionally, CBP proposes that this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received an interpretive ruling or decision on the merchandise that is subject to the proposed revocations, or any party involved with a substantially identical transaction, should advise CBP by March 12, 2010, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

Shamu snak pak. In NY N015784 the "Shamu Snak Pak" is described as a black and white plastic container molded into the shape of a whale. The whale container measures approximately 10 inches in length and 8 inches in height. The container is molded into a replica of "Shamu" the whale which is located in the Sea World Adventure Park. The words "Sea World Adventure Parks" are printed on the outside of the container. The container is constructed to be used as a food container for a children's meal at the food establishments in a park or zoo and will be given away as a novelty toy. In NY J86143, a product called the "Shamu Snack Pack", item number 3410-F001, is described as. a novelty give away toy constructed of injection molded polypropylene that accompanies each kid's meal that is purchased. After the meal is finished the plastic Shamu will serve as a child's play thing, a source of amusement

CBP is proposing to issue HQ H042583 in order to revoke NY N015784 and NY J86143 and reclassify the Shamu snack pack under HTS 4202.12.20 as a plastic container rather than under HTS 9503.00.0080 as a toy.

CBP proposes this change as a correction. Note 1(d) to Chapter 95 provides that the Chapter does not cover "Sports bags or other containers of heading 4202, 4303 or 4304." Heading 4202 is a two part heading which covers only the articles specifically named therein and similar containers. The first portion of the heading covers certain cases and containers of any material. The second portion covers, amongst other things, insulated food or beverage bags, only when constructed of certain materials not including plastic. For the subject merchandise to be classified in heading 4202, it must be found that it falls within the scope of the first part of the heading, as a "similar container" to those enumerated therein.

In classifying goods under the residual provision of "similar containers" of heading 4202, the Court of International Trade has stated as follows: "As applicable to classification cases, ejusdem generis (of a similar kind) requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms." Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff 'd. 69 F. 3d 495 (Fed. Cir. 1995). The court found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the containers listed eo nomine in heading 4202, i.e. "to organize, store, protect and carry various items."

The Shamu Snak Pak thus clearly shares the essential characteristics of goods of heading 4202; it is specifically designed to organize, store, protect and transport food. The Snak Pak is not limited to food, however; like trunks, briefcases, suitcases, etc. of heading 4202, it can be used to store and organize any number and kind of personal items. Furthermore, the Shamu Snak Pak is comparable to plastic lunchboxes, which have consistently been classified in heading 4202. (See bulletin for ruling numbers.)

CBP now proposes that by application of GRI 1, the Shamu Snak Pak is classified in subheading 4202.12.20, which provides for: "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 or mainly covered with such materials or with paper: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or of textile materials: With outer surface of plastics."

Proposed: 4202.12.20, 20%; Current: 9503.00.0080, duty-free

February 10, 2010 CBP Bulletin (Vol. 44, No. 7) available at: http://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2010/Vol.%2044%20February%2010,%202010,%20No.%2007/