CLA-2 CO:R:C:G: 083005 DFC
Mr. Frank Caruso
Thorne, Ernst & Whinney
Commercial Union Tower
Box 262
Toronto-Dominion Center
Toronto, Ontario, Canada MSK 159
RE: Tariff classification of a steel tool box
Dear Mr. Caruso:
In a letter dated October 27, 1988, you asked this office to
reconsider the result reached in New York Ruling Letter (NYRL)
829483 dated June 17, 1988, relating in part to the tariff
classification of certain tool boxes produced in Canada which are
designed to be carried with the person.
FACTS:
The merchandise involved consists of steel tool boxes
designated as models B17, B20, B21, and B26. In NYRL 829483
these tool boxes were classified under subheading 4202.19.0000,
HTSUSA, as trunks, suitcases * * * and similar containers, other
with duty at the rate of 16 percent ad valorem.
It is your opinion that these tool boxes are properly
classifiable under subheading 7326.90.9090, HTSUSA, as other
articles of iron or steel, other, other, other with duty at the
rate of 5.1 percent ad valorem.
ISSUE:
Can metal tool boxes of a type designed to be carried with
the person, whether in or about the home, or by professional and
non-professional persons be considered as containers similar to
trunks, suitcases, vanity cases, * * * binocular cases, camera
cases, musical instrument cases, gun cases * * * ?
- 2 -
LAW AND ANALYSIS:
The rationale for your position is that Explanatory Note 3 to
heading 7326, HTSUSA, includes tool boxes within that heading.
You also indicate that Canadian Customs has issued a preliminary
opinion that these tool boxes are classifiable under subheading
7326.90.9090, HTSUSA.
It should be noted that articles of heading 4202, HTSUSA, are
excluded from classification under heading 7326, HTSUSA, by
virtue of Explanatory Note (a) to the latter heading.
Currently, we are not aware of any interpretation of the
phrase "and similar containers" found in the first part of
heading 4202, HTSUSA. It is our observation that the exemplars
named therein e.g., vanity cases, camera cases, binocular cases,
gun cases and suitcases are designed to be carried with the
person. In the case of DRI Industries, Inc. v. United States, 657
F. Supp. 528 (CIT 1987), aff'd, Appeal No. 87-1301 (Fed. Cir.,
decided October 28, 1987), the court ruled that a tool chest
designed to store and organize tools and also to be carried with
the person from place to place was properly classifiable as
luggage for tariff purposes. In determining that the tool box
was ejusdem generis with the exemplars listed in Schedule 7, Part
1, Subpart D, Headnote 2(a)(ii), Tariff Schedules of the United
States (TSUS), the court observed that "[t]he exemplars listed in
2(a)(ii) represent a category of containers or cases which are
designed to store, organize and protect those contents from which
the containers derive their name."
Further, the court explained that "[t]he exemplars in
subsection (ii) are containers or cases which are designed to
hold specific items which give them their names: brief cases to
hold papers, school bags to hold school articles, golf bags to
hold golf equipment, gun cases to hold guns, camera cases to hold
cameras, * * *."
We realize that the DRI Industries case, supra, is not
controlling here because it was decided under a different tariff
act. However, its logic is clearly applicable noting the wording
and structure of heading 4202, HTSUSA. For this reason it is our
opinion that the tool boxes in issue with the exception of model
B26 are similar to the enumerated articles in the first part of
heading 4202, HTSUSA.
- 3 -
With respect to model B26, it has come to our attention that
it was the subject of Headquarters Ruling Letter (HRL) 074639EMS
dated February 15, 1985. In that ruling this office held that
model B26 was not luggage for tariff purposes because it was
designed to be retained in the shop and was not portable.
Inasmuch as model B26 is not portable, we do not consider it as
being similar to the named articles in the first part of heading
4202, HTSUSA, and thus, classification under chapter 73 is
appropriate.
We do not view the preliminary opinion issued by Canadian
Customs as binding on the United States in this matter.
HOLDING:
NYRL 829483 is affirmed insofar as those tool boxes designated
as models B17, B20, and B21 were correctly classified under
subheading 4202.19.0000, HTSUSA, with duty at the rate of 16
percent ad valorem.
NYRL 829483 is modified in part as to model B26 which is
properly classifiable under subheading 7326.90.9090, HTSUSA, with
duty at the rate of 5.1 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc AD NY Seaport
1 cc John Durant
1 cc Kevin Gorman NY Seaport
DFCahillgc/3/3/89 fnl/3/8/89