CLA-2 RR:TC:TE 958184 SK
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
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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:
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"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.
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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
Division