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HQ 966544




March 2, 2004

CLA-2: RR:CR:TE 966544 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.99.9000

Ms. Vera Adams
Port Director, Los Angeles-Long Beach Seaport U.S. Customs and Border Protection
301 East Ocean Blvd.
Long Beach, CA 90802

RE: Decision on Application for Further Review of Protest No. 2703-03-101157, concerning classification of the “Armloc II ® Handgun Safety System”

Dear Ms Adams:

This is a decision on a protest timely filed on May 13, 2003, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of the “Armloc II ® Handgun Safety System” and liquidation of nine entries on February 21, 2003, and two entries on March 28, 2003, at the U.S. Customs and Border Protection (CBP) Long Beach, California, port of entry. A sample of the subject merchandise was submitted to this office for examination.

FACTS:

The subject merchandise is identified as the “Armloc II ® Handgun Safety System” (hereinafter “Armloc II ®”) and is designed to carry a handgun. The Armloc II ® has an exterior case which is constructed of “Kevlar” ® hardened composite plastics. The molded plastic case is approximately 12.5 inches high (from handle to base) x 13 inches long x 3 inches wide. The large molded handle forms the top of the case and features two separate locks at the front, i.e., a fitted key lock and separate combination lock. The molded handle also allows the case to be carried in the manner of an attache or brief case. The case is hinged at the base and has two raised protrusions on either end to allow the case to balance upright. The interior is fitted with “egg crate” foam on one side and a flat foam piece on the other side. The rear panel of the case has been fitted with removable bolts which also allow the case to be used with a bracket/clamp to secure it to a stationary object (e.g., wall or bed frame).

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 4202, HTSUSA, is a two part heading which covers only the articles specifically named therein and similar containers. In this instance, we are concerned with the first portion of the heading which covers trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers.

As noted above, “gun cases” is an eo nomine exemplar in heading 4202, HTSUSA. As such, “gun cases” is not a use provision because the term describes the merchandise by name, not by use. See Clarendon Marketing, Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998); and Nidec Corp. v. United States, 68 F.3d 1333, 1336 (Fed. Cir. 1995). It is also important to note that "An eo nomine designation, with no terms of limitation, will ordinarily include all forms of the named article." Hayes-Sammons Co. v. United States, 55 C.C.P.A. 69, 75 (1968). Accordingly, a use limitation should not be read into an eo nomine provision unless the name itself inherently suggests a type of use. See Pistorino & Co. v. United States, 599 F.2d 444, 445 (CCPA 1979); United States v. Quon Quon Co., 46 C.C.P.A. 70, 72-73 (1959); F.W. Myers & Co. v. United States, 24 Cust. Ct. 178, 184-85, (1950).

The Protestant argues that the subject article is classifiable under subheading 3926.90.9880, HTSUSA, which is a basket provision that provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other, Other”. See 39.26 EN, which provides that this heading covers articles, not elsewhere specified or included, of plastics. However, heading 4202, HTSUSA, has eo nomine provided for “gun cases” which, in this instance, would include all forms of the article because there are no terms of limitation associated with this exemplar. Furthermore, the 42.02 EN notes that the containers of this heading may be rigid or with a rigid foundation and since “gun cases” are included in the first part of the heading, before the semi-colon, they may be of any material. See 42.02 EN.

The Protestant states that “gun cases” are not defined in the HTSUSA or legislative history. However, in Totes, Inc. v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), the Court of International Trade concluded that the "essential characteristics and purpose of the Heading 4202 exemplars are to organize, store, protect and carry various items." In this instance, the subject case, unlike any of the exemplars in the EN to heading 3926, is intended to store, protect, organize and transport a gun either inside or outside the home.

We further note the following dictionary definition for “case” taken from the 1979 Webster’s New Collegiate Dictionary, i.e., “ a box or receptacle for holding something ”. Thus, a “case” could conceivably include any type of receptacle, stationary or portable, designed to hold something. In fact, the Protestant has submitted promotional literature for the Armloc II ®, which specifically notes that the article has a dual purpose: It can be used to lock onto any bedframe or wall and to carry the handgun anywhere. In addition, the literature states that the case “Complies with new and existing state and federal regulations for keeping and transporting handguns.”

The Protestant has cited to three CBP Rulings to support classification of the Armloc II ® as an other article of plastic in heading 3926, HTSUSA. Two of these rulings, NY 873140, dated April 21, 1992, and HQ 951877 (reconsideration of NY 873140), dated October 16, 1992, can be distinguished from the instant case because the article classified in subheading 3926.90.9090, HTSUSA, was identified as an “electronic gun locker” and not designed with a carrying handle. NY G89340, dated April 2, 2001, classified articles identified as “gun safes” (Items SGS-1124R and SGS-1125R) constructed of aluminum exterior in subheading 7616.99.5090, HTSUSA, which is a basket provision that provides for other articles of aluminum that are not specified elsewhere in the Nomenclature. In NY G89340, both articles are described as rectangular, foam-lined, aluminum cases with carry handles. Each case has 2 combination locks and 2 traditional locks. According to the promotional literature contained in the file, Item SGS-1124R is designed to safely contain up to 4 pistols, is approved for airline travel, and features an ergonomic carrying handle and zippered travel cover. Item SGS-1125R is designed to store 2 break down shot guns, features an ergonomic carrying handle, includes a zippered travel cover, is approved for airline travel, and has strong mylar wheels built into the case for travel convenience. CBP will review NY G89340 to see whether it reflects our current views.

Finally, we note that CBP has previously classified articles identified as gun cases in heading 4202, HTSUSA. NY G85641, dated February 12, 2001, involved the tariff classification of gun cases and a determination as to preferential treatment under the Caribbean Basin Economic Recovery Act (CBERA). In this ruling, the samples consisted of upper and lower shells of pressed wood formed to shape the main body of the case. The fur lined interior was fitted to hold the gun/accessories by means of wood blocks and dividers. The samples submitted each had carrying handles and varying exteriors of textile and leather. With respect to the classification of all the textile covered cases (Style 1215, 1215DW, 1215D, and 1215E), CBP found that these gun cases were each classifiable in subheading 4202.92, HTSUSA. In NY K82654, dated February 5, 2004, a fitted gun case, with a carrying handle, manufactured of neoprene, and wholly covered on the exterior surface with polyester fabric, was deemed to be of a kind eo nomine provided for in heading 4202, HTSUSA.

In view of the foregoing, the Armloc II ® is properly classified as a gun case in heading 4202, HTSUSA, and is eo nomine provided for in the exemplars for that heading.

HOLDING:

The subject merchandise, identified as the Armloc II ®, is classified in subheading 4202.99.9000, HTSUSA, 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 paperboard, or wholly or mainly covered with such materials or with paper: Other: Other: Other." The general column one duty rate is 20% percent ad valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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