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