CLA-2 RR:CR:TE 960527 GGD
Mark R. Sandstrom, Esquire
Thompson Hine & Flory, P.L.L.
1920 N Street, N.W.
Washington, D.C. 20036-1601
RE: Reconsideration of PD B83432; CD-Rom Storage Folios; Cases Specially Fitted
with Disc-Holding Devices
Dear Mr. Sandstrom:
This letter is in response to your request of May 20, 1997, on behalf of your client, the School and Office Products Division of the Mead Corporation, for reconsideration of Port Ruling Letter (PD) B83432, issued April 14, 1997, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of three articles identified as “CD-Rom Storage Folios” which are made in China. Two samples were submitted with the request. We regret the delay in responding.
FACTS:
In PD B83432, issued April 14, 1997, Customs classified the three articles at issue in subheading 4202.92.9025 (the current statistical annotation, i.e., the provision’s ninth and tenth digits, is 26), HTSUSA, textile category 670, which provides for:
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“Trunks...binocular cases, camera cases, musical instrument cases, gun cases, holsters, and similar containers…: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, With outer surface of textile materials: Other: Of man-made fibers.”
The articles are described in PD 83432 as “three compact disk carrying/storage cases (CD-Rom Folios #33386, #33388, and #33402, designed to hold twelve, twenty-four, and forty-eight compact disks, respectively) with outer surfaces predominantly of woven nylon fabric which have been reinforced between layers of fabric with rigid sheet plastic.” As noted in the ruling, the cases have hook and loop fabric fastener closures which serve to secure the two main portions of each case together, allowing each to be opened from either side. This feature essentially doubles the storage space provided by the interior, expandable, accordion-like storage compartment or compartments. At least one compartment is affixed within each case. The top and bottom ends of the cases are composed of a rigid plastic material. The bottom exterior of each case features a slot with a clear plastic window for display of identifying information. None of the cases has a carrying handle.
Only the two larger containers, item nos. 33388 and 33402, have been submitted as samples with the request for reconsideration. These are identified herein as sample items 1 and 2, respectively. Sample item no. 1, advertised on a removable, paperboard sleeve as a “CD-ROM Storage Folio,” measures approximately 12-5/8 inches in height by 3 inches in width by 5-3/4 inches in depth (in the closed position). Two compartments, each essentially composed of one rigid sheet of plastic and numerous mini-compartments of nonwoven polyester fabric (identified as “Lint free DuPont Sontara®), are permanently affixed within the case. These are retained in a compact position by hook and loop fabric fastener tabs. When the tabs are released, the individual mini-compartments fan out accordion-style, providing space to hold 48 CDs and/or 3.5 inch diskettes.
Sample item no. 2 measures approximately 6-7/8 inches in height by 3 inches in width by 5-3/4 inches in depth (in the closed position), and features only one of the interior, accordion-like compartments (with space for 24 CDs and/or 3.5 inch diskettes). Sample no. 2 is otherwise similar in all material respects to item no. 1.
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ISSUE:
Whether the articles are classified under heading 4202, HTSUSA, which covers, in part, binocular cases, camera cases, musical instrument cases, and similar containers; or under heading 6307, HTSUSA, which covers other made up articles of textiles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.
Among other merchandise, chapter 42, HTSUSA, covers travel goods, handbags and similar containers. Heading 4202, HTSUSA, provides, in part, for attache cases, school satchels, binocular cases, camera cases, musical instrument cases, and similar containers. In Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995), the Court of International Trade held that the essential characteristics and purposes of the heading 4202 exemplars are to organize, store, protect and carry various items. EN (c) to heading 4202 states that the heading does not cover:
Articles which, although they may have the character of containers, are not similar to those enumerated in the heading, for example, book covers and reading jackets, file-covers, document-jackets...etc., and which are wholly or mainly covered with leather, sheeting of plastics, etc. Such articles fall in heading 4205 if made of (or covered with) leather or composition leather, and in other Chapters if made of (or covered with) other materials.
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You essentially maintain that, although the articles at issue may have the character of containers, they are not similar to the containers enumerated under what you describe as the “narrow” heading 4202, HTSUSA, and are therefore excluded from the heading by EN (c). Emphasizing the fact that the containers are marketed for “Media Storage” and that they have no zipper closures or handles, you contend that the articles offer little protection, are not intended to be carrying cases, and are therefore classifiable not under heading 4202, but under heading 6307, HTSUSA.
Customs has generally classified articles that have the character of containers but lack similarity to those enumerated in heading 4202, by following the guidance of EN(c) to heading 4202, i.e., according to the materials the articles are made of or covered with. Those articles made of or covered with materials other than leather (e.g., sheeting of plastics and textile materials) have been classified in headings 3926 and 6307, HTSUSA. See HQ 961366, issued April 28, 1999, HQ 961021, issued January 5, 1999, and NY D80856, issued August 6, 1998.
Among other goods, chapter 63, HTSUSA, provides for “other made up textile articles.” Note 1(l) to section XI, HTSUSA, under which chapter 63 falls, states that “[t]his section does not cover: Articles of textile materials of heading 4201 or 4202.” Like heading 4205, the language of heading 6307, HTSUSA, which covers “Other made up articles, including dress patterns,” does not enumerate book covers, reading jackets, file covers, or document jackets as exemplars of articles classifiable thereunder. The EN to heading 6307 state that the heading covers made up articles of any textile material which are not included more specifically…elsewhere in the Nomenclature. Although the EN make no reference to reading covers, document jackets, etc., there is no indication in the tariff or the EN that the “other materials” which make up or cover such articles do not include textile materials.
Whether the cases are prima facie classifiable under headings 4202 or 6307, HTSUSA, depends upon whether their primary purpose is to organize, store, protect, and carry various items; or to enclose and protect articles such as stationery, books, files, and/or documents. If the cases are classifiable under heading 4202, they are precluded from classification under heading 6307 by the legal note to section XI, HTSUSA, previously cited.
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You cite to Headquarters Ruling Letter (HQ) 953459, issued May 6, 1993 (in which the issue was whether certain CD organizers were classifiable under heading 6307 or heading 4202). You appear to have chosen this particular ruling to point out that the CD organizers classified therein (under heading 4202) each had a zipper closure encompassing three sides of the cover. In the same ruling, however, this office cited to several previous rulings (e.g., HQ 952700, issued December 23, 1992, New York Ruling Letter (NY) 872277, issued April 7, 1992, NY 868933, issued December 18, 1991, and NY, 868901, issued December 2, 1991) in which Customs had maintained its position that computer data storage disc organizers were ejusdem generis with the enumerated containers of heading 4202, HTSUSA, and that there was no prerequisite that such cases possess handles or straps, nor that they be constructed with rigid exteriors. We noted that, as heading 4202 provided for the articles, heading 6307 was not applicable in light of the previously cited EN, which restricts the heading to made up articles of textile that are not included more specifically elsewhere in the Nomenclature.
You also cite to NY 809583, issued May 19, 1995, and to NY 871491 and NY 871380, both of which were issued February 24, 1992. In these rulings (apparently cited to show that certain CD storage cases may be classified under headings other than heading 4202, HTSUSA), articles designed for the storage of computer discs and/or diskettes were classified in subheading 3926.10.0000, the provision for “other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies.” The brief descriptions of the articles subject to NY 809583, NY 871491, and NY 871380, respectively, demonstrate slight, if any, similarity to the articles at issue in this case, but are set forth in their entirety as follows:
The diskette cases are plastic boxes for the storage of 3.5 inch and 5.25 inch diskettes. The cases are composed of high impact polystyrene with see-through covers.
The disk case is designed to store up to ten 3.5 inch diskettes, and is easily placed on a shelf, in a drawer, or carried in a briefcase. It is molded of high impact styrene plastic with the top half of the unit constructed of clear plastic.
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The computer CD-ROM file is used to store computer discs. The file is composed of two plastic outer sleeves that enclose six protective plastic sleeves in which the discs are placed. The CD-ROM file itself is meant to be stored on a bookshelf.
The fact that articles designed and intended to hold and store computer diskettes have been classified in headings other than heading 4202, HTSUSA, is not in dispute. In HQ 959780, for example, issued February 17, 1998, this office classified plastic hinged cases for computer diskettes. The articles were described as “soft pliable molded cases of plastic” and as “a shell without any inserts” with “nothing in its construction which particularly suits it for travel.” Like the articles subject to the three New York Ruling Letters above, the case was classified in subheading 3926.10.0000, HTSUSA, because its primary purpose was to store and protect its contents.
In HQ 960983, issued September 25, 1998, however, this office distinguished HQ 959780, and classified a “Clam Diskette Storage Case” – which was composed of pliable molded plastics and was designed to hold either five 3.5 inch diskettes or two magnetic optical diskettes - in subheading 4202.99.9000, HTSUSA. Unlike the article subject to HQ 959780, the case was specially fitted with an internal plastic support device attached to the case’s interior at four points. The device rendered the case suitable for the protection of its contents during travel and classifiable as a specially fitted container similar to those enumerated in the first part of heading 4202, HTSUSA.
Like the “Clam Diskette Storage Case” at issue in HQ 960983, the “CD-ROM Storage Folios” at issue here are specially fitted with internal devices which render the articles suitable to protect contents during travel. The fact that the cases have no handles, and have hook and loop fabric fasteners instead of zippered closures, is of little consequence in light of their durable construction of textile materials, plastic padding and reinforcement, and multiple interior compartments. Although CD-Rom and diskette carrying cases are not named in heading 4202, HTSUSA, nor suggested in the EN as example containers, Customs need not show that merchandise specifically matches the exemplars. Contrary to your suggestion that the heading is “narrow,” we note that the Court in Totes, referred to “the broad reach of the residual provision for ‘similar containers’ in Heading 4202 by virtue of ejusdem generis.” The Court stated that “[p]recise functional equivalence to, or commercial interchangeability with, any one particular exemplar enumerated in the Heading plainly is not required by the rule….”
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865 F. Supp. at 874, and further that “the rule of ejusdem generis requires only that the merchandise possess the essential character or purpose running through all of the enumerated exemplars.” Id. at 872.
We find that the “CD-ROM Storage Folios” possess the physical attributes of articles classifiable in heading 4202, HTSUSA, that they are designed to organize, store, protect and carry particular contents, and that they are therefore similar to binocular cases, camera cases, musical instrument cases, all of which are specially shaped or fitted for particular contents. The three cases are classifiable under heading 4202. As such, they are precluded from classification under heading 6307 by note 1(l) to section XI, HTSUSA. The cases are classified in subheading 4202.92.9026, HTSUSA. For additional rulings concerning containers for CDs, see HQ 962450, issued August 23, 1999, HQ 961457, issued April 6, 1998, HQ 958773, issued July 29, 1996, and HQ 959126, issued May 13, 1996.
HOLDING:
The articles identified as sample numbers 1 and 2 (and the articles identified in PD B83432 as item nos. #33386, #33388, and #33402) are classified in subheading 4202.92.9026, HTSUSA, textile category 670, the provision for “Trunks... binocular cases, camera cases, musical instrument cases, gun cases, holsters, and similar containers…: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other, With outer surface of textile materials: Other: Of man-made fibers.” The general column one duty rate is 18.6 percent ad valorem.
PD B83432, issued April 14, 1997, is hereby affirmed.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.
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Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division