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HQ 956140




October 29, 1994

CLA-2 CO:R:C:T 956140 ch

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.99.9000

District Director
U.S. Customs Service
Port of Los Angeles
300 S. Ferry Street
Terminal Island, California 90731

RE: Application for further review of Protest No. 2704-94-100112 under 19 U.S.C., section 1514(c)(2); tariff classification of tool boxes; portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories.

Dear Sir:

This is a decision on application for further review of a protest timely filed by Stein, Shostak, Shostak & O'Hara on behalf of Consolidated Devices, Incorporated. We have considered the protest and our decision follows.

FACTS:

The submitted samples are a pair of tool cases composed of molded plastics, which have been shaped to hold particular torque wrenches for use by professional mechanics. The tool boxes are secured by means of molded plastic latches. The first tool case measures approximately 17 inches by 3 1/2 inches by 3 1/2 inches; the second approximately 48 inches by 4 1/2 inches by 4 1/2 inches. The cases are lightweight and weigh no more than a few pounds each. The smaller wrench weighs approximately 2 1/2 pounds; and the larger approximately 11 pounds.

The merchandise was entered in subheading 3923, Harmonized Tariff Schedule of the United States (HTSUS), which provides for articles for the conveyance or packing of goods, of plastics. However, the tool boxes were classified in heading 4202, HTSUS, which provides in part for articles similar to spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases and holsters.

ISSUE:

What is the proper tariff classification for the tool boxes?

LAW AND ANALYSIS:

Heading 4202, HTSUS, 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, 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

As the protestant observes, the heading is divided into two parts by a semi-colon. The Explanatory Note (EN) to heading 4202, at page 613, states that articles covered by the first part of the heading may be of any material. However, articles covered by the second part must be of the materials specified therein. The tool boxes are composed of molded plastics, which is not a material set forth in the second part. Hence, in order for the tool boxes to be classified in heading 4202, they must be classifiable as articles similar to the exemplars enumerated in the first part.

The EN's to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.

On July 1, 1992, the Customs Cooperation Council's Harmonized System Committee issued a revision to the EN to heading 4202. This revision, found at page 613, provides that portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, are containers similar to those enumerated in the first part of the heading. Accordingly, we have held that tool boxes entered after July 1, 1992, must conform with this revision. See HRL 953696, dated August 26, 1993; HRL 953358, dated June 8, 1993; HRL 953904, dated May 13, 1993.

Protestant contends that the tool cases are not "portable," as required by the revision or by our administrative precedent. Our attention is directed to Headquarters Ruling Letter (HRL) 083005, dated June 30, 1989, where we stated that the exemplars of the first part of heading 4202 are designed to be carried on the person. Similarly, in HRL 088184, dated April 11, 1991, we concluded that containers of the first part of the heading must to some degree be portable for travel purposes. Counsel notes that the instant tool boxes have no handles and argues that they have not been designed to be carried. Ruling letters have been submitted wherein we have concluded that the presence of a handle is evidence that a tool box or other containers of heading 4202 are portable. See HRL 950030, dated August 19, 1991; HRL 087115, dated August 31, 1990. In addition, protestant argues that the size of the larger case renders it awkward for transport over any significant distance. In distinguishing the instant tool boxes from portable containers of the first part of the heading, counsel advises that they will be used as storage containers for their contents.

In Totes, Incorporated v. United States, Slip Op. 94-154, the Court of International Trade upheld Customs classification of a trunk organizer in heading 4202, HTSUS. In that decision, the Court noted that:

In any event, whether portability of the import is a primary or ancillary feature, is not legally controlling in its classification as "similar containers" under heading 4202. Thus, even assuming that the trunk organizer's portability or design for carrying is ancillary to its storage purpose, the trunk organizers are nonetheless ejusdem generis with the exemplar containers in Heading 4202 - precisely the purpose of jewelry boxes that are used primarily to organize, store and protect articles, and only incidentally (if at all) to transport the contents. Id. at page 14.

In a footnote to this passage, the Court observed:

Under TSUS Headnote 2(a)(ii) of Schedule 7, Part 1, Subpart D, the term "luggage" included containers and cases "designed to be carried with the person." While the trunk organizers are stipulated to be designed to be carried, no such express design for carrying requirement exists in Heading 4202. Moreover, the court may take judicial notice that common types of luggage - men's suit bags or ladies' dress bags - are used both to carry or transport garments in a neat and organized manner and/or to store and protect the garments while in the trunk of a car or while the bags are hung in a closet. The fact that most of the time such garment bags may be utilized for storing garments in the trunk of a motor vehicle or closet does not make such bags any less "similar containers" in Heading 4202.

Many fitted or compartmentalized cases, bags or other containers among the exemplars in Heading 4202 are routinely used to carry with the person a specific article or related articles, viz., cameras, lenses, film, etc.; golf clubs, balls, shoes, tees, etc.; and tennis rackets and balls, and are also used to store and protect these articles after they are reinstalled into their containers.

The short of the matter is: whether the carrying feature or organized storage feature of the container is the primary or secondary use is simply not a material issue in their classification under Heading 4202.

As this language makes clear, to the extent that portability is a requirement, articles classifiable in heading 4202 need not be primarily designed for this purpose. Thus, the fact that the tool cases may primarily be used to store their contents does not remove them from the scope of the heading. Similarly, the fact that the cases may more easily be carried if a handle were present is not dispositive. Rather, to satisfy the portability requirement it is sufficient if, in terms of their design, it is reasonable and foreseeable that the articles may be used to transport their contents.

In this instance, the tool cases are lightweight and may be easily moved from place-to-place. Although they do not possess handles, a feature which would facilitate transport, they may be carried by hand or stowed in the back of a vehicle. The larger case together with its contents would weigh no more than 20-25 pounds. The cases are of a durable construction sufficient to withstand the rigors of travel without damaging their contents. Even assuming that the tool boxes will primarily be used for storage purposes, it is reasonable and foreseeable that they will at least occasionally be used to transport their contents both within and outside the repair shop. Accordingly, we conclude that the instant tool boxes are ejusdem generis with the containers of the first part of heading 4202, HTSUS.

We note in passing other points raised by the protestant. In HRL 088184, we stated:

Heading 4202, HTSUSA, has two parts, separated by a semicolon. Both portions of the heading include the terms "and similar containers": articles which must be ejusdem generis to the exemplars listed. While all of the articles bear some similarity to one another, each group exhibits its own particular characteristics. Those similar to suitcases, etc., in the first part of the heading are suited to stand-alone use, having handles, latches and secure closures.

Counsel cites this passage for the proposition that Customs has required the presence of handles, latches and secure closures for articles classified in the first part of heading 4202. By its terms, containers enumerated in the first part of the heading are not limited to those possessing these physical characteristics. The quoted language should be read as a generalized description of physical characteristics commonly associated with articles of the first part of the heading. However, there is no absolute requirement that these containers possess handles. (e.g. A spectacle case, which is enumerated in the first part of the heading, does not ordinarily possess handles).

Protestant asserts that Customs has classified all containers used for storage and not for travel in the second part of heading 4202, HTSUS. Therefore, as the tool boxes are designed for storage purposes and are not classifiable in the second part, we are compelled to exclude them from the heading. Without conducting an exhaustive review of all the rulings in this area, we note that the exemplars of both parts of heading 4202 often have a dual storage/transport function. As discussed above, the portability requirement for tool boxes and cases of the first part is satisfied even when this function is ancillary to the storage function.

Protestant proposes classifying the tool boxes in heading 3923, HTSUS, which provides in part for articles for the conveyance or packing of goods, of plastics. In the alternative, the protestant argues that the cases may be classified in heading 3926, HTSUS, which is the residual provision for plastic articles. The EN to heading 4202 indicates that plastic tool boxes or cases, not specially shaped or internally fitted to contain particular tools, are classifiable in heading 3926. Hence, heading 3923 is inapplicable. Furthermore, as the tool cases are described by heading 4202, we need not resort to heading 3926.

HOLDING:

Therefore, based on the foregoing discussion, this protest should be denied in full. The subject merchandise is classifiable in subheading 4202.99.9000, HTSUS, which provides in part for containers similar to spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters. The applicable rate of duty is 20 percent ad valorem. A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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