HQ 083005: Tariff classification of a steel tool box

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 083005

                                    June 30, 1989
          CLA-2  CO:R:C:G:  083005 DFC

          CATEGORY: Classification

          TARIFF NO.: 4202.19.0000, 7326.90.9090

          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