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HQ 958184



Jamuary 30, 1996
CLA-2 RR:TC:TE 958184 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.99.9000

Port Director
U.S. Customs Service
110 S. Fourth Street, Room 137
Minneapolis, MN 55401

RE: Decision on Application for Further Review of Protest No. 3501-94-100061; classification of "Rod Keeper;" plastic container used to transport and store welding rods; 4202 v. 3926 or 3923; Legal Note 2(h) to Chapter 39, HTSUSA, excludes other containers of heading 4202 from Chapter 39; 4202.99.9000, HTSUSA.

Dear Sir:

This is a decision on application for further review of a protest timely filed by Schenker International, Inc., on behalf of B.A.C. Industries, on July 14, 1995, against your decision regarding the classification of a plastic "Rod Keeper." At issue is a single entry made at the port at Minneapolis on July 30, 1993, and liquidated on November 12, 1993.

FACTS:

This protest involves the classification of a plastic "Rod Keeper." The article at issue is a cylindrical, airtight/watertight container of molded plastic designed to be used by professional welders to contain their welding rods. The container is specially shaped and fitted for that purpose. It is designed to be worn on a belt in a similar fashion to a tool holder so that it can be transported to various job sites.

The subject article was entered under subheading 4202.12.2085, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for, in
pertinent part, trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers, with outer surface of plastics or of textile materials. The "Rod Keeper" was subsequently liquidated under subheading 4202.99.9000, HTSUSA, which provides for, inter alia, other containers and cases. Protestant seeks classification under either subheadings 3926.10.0000, 3926.90.9890 or 3923.10.0000, HTSUSA. Subheading 3926.10.0000, HTSUSA, provides for "[O]ther articles of plastics and articles of other materials of headings 3901 to 3914: office or school supplies." Subheading 3926.90.9890, HTSUSA, provides for "other" residually classified articles of plastic. Subheading 3923.10.0000, HTSUSA, provides for "[A]rticles for the conveyance or packing of goods, of plastics...: boxes, cases, crates and similar articles."

ISSUE:

What is the proper classification of the subject merchandise?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

Heading 4202, HTSUSA, provides for carrying cases and containers that are used to protect, store and transport a variety of articles. As the "Rod Keeper" is a molded plastic container that is used to protect, store and transport welding rods, classification is proper within this heading. The fact that the "Rod Keeper" is specially designed to accommodate a particular item will not preclude it from classification within heading 4202, HTSUSA. We note that several of the carrying cases enumerated in heading 4202, HTSUSA, are also designed to accommodate specific items, such as binocular cases, camera cases and musical instrument cases, etc... . In Totes, Incorporated v. United States, 95-1125 (decided October 24, 1995), affirming the Court of International Trade's decision in Totes, Incorporated v. United States, 865 F. Supp. 867 (1994), the U.S. Court of Appeals for the Federal Circuit examined the scope of heading 4202, HTSUSA, with regard to specialized containers. In the appellate decision, the court examined the classification of the "Totes Trunk Organizer," a rectangular case used to organize and store items such as motor oil, tools and jumper cables in an automobile trunk. The Court of Appeals held that:

"the merchandise is not removed from classification under subheading 4202.92.9020 simply because it is intended to organize, store, and protect items associated with a motor vehicle. Many of the containers named in subheading 4202.92.9020 are used to organize, store, and protect specific items."

The Court of Appeals' determination supports Customs' contention that the subject merchandise is prima facie classifiable within heading 4202, HTSUSA.

The next issue is whether the subject merchandise is also classifiable under headings 3926 and/or 3923, HTSUSA. Heading 3926, HTSUSA, is a general residual provision covering "other articles of plastics." As between heading 4202, HTSUSA, which provides for specifically enumerated carrying cases, and the residual provision of heading 3926, HTSUSA, heading 4202, HTSUSA, provides for a more specific, limited class of goods. Moreover, the Explanatory Notes (EN) to heading 3926, HTSUSA, at page 575, state that this heading "covers articles, not elsewhere specified or included, of plastics ... ." Legal Note 2(h) to Chapter 39 states that this chapter does not cover "other containers of heading 4202." As the "Rod Keeper" is classifiable within heading 4202, HTSUSA, classification within heading 3926, HTSUSA, is precluded.

Heading 3923, HTSUSA, provides for plastic articles for the conveyance or packing of goods. The EN to heading 3923, at page 574, state that this provision covers "all articles of plastics commonly used for the packing or conveyance of all kinds of products" [emphasis added]. The articles listed in the EN include plastic boxes, crates and similar articles and are items commonly used to convey goods in the strictest sense of the word. The subject merchandise is not of the type commonly used to pack or convey products, at least not in the same utilitarian capacity as the enumerated examples in this heading. Also, as noted supra, Legal Note 2(h) to Chapter 39 states that this chapter does not cover "other containers of heading 4202." As the "Rod Keeper" is classifiable within heading 4202, HTSUSA, and it is not an article that is commonly used to convey or pack goods, classification is not proper within heading 3923, HTSUSA.

HOLDING:

The "Rod Keeper" is classifiable under subheading 4202.99.9000, HTSUSA, which provides for other containers and cases, other, other, dutiable at a rate of 20 percent ad valorem.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest. 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 this decision must be accomplished prior to the mailing of the decision.

Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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