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