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HQ 958773




July 29, 1996

CLA-2 RR:TC:TE 958773 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9025

Port Director
U.S. Customs Service
610 South Canal Street
Chicago, Illinois 60607

RE: Decision on Application for Further Review of Protest No. 3901-95-102249, filed September 12, 1995, Concerning the Classification of Compact Disc (CD) Cases

Dear Sir:

This is a decision on a protest timely filed in September 1995, against your decision in the classification and liquidation of two entries made in April 1995, of CD cases.

FACTS:

You classified the merchandise under subheading 4202.92.9025, HTSUSA, textile category 670, the provision for "Trunks...binocular cases, camera cases, musical instrument cases...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," with an applicable duty rate (in 1995) of 19.8 (now 19.5) percent ad valorem.

The protestant claims that the goods should be classified in subheading 6307.90.99, HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other," with an applicable duty rate of 7 percent ad valorem.

The submitted samples are two styles of rectangular fabric CD cases, the smaller of which, when closed, measures approximately 6-1/4 inches in width by 7-1/2 inches in height by -2-

2-1/2 inches in depth (i.e., the spine is approximately 2-1/2 inches wide). The larger case differs only in its height, which measures approximately 15 inches. The cases fold roughly in half and close by means of a nylon coil zipper extending around three sides. The inner and outer surfaces are composed of nylon. Between the surface layers of fabric, the sides of the cases are generously foam-padded and a plastic card is inserted into each to provide stiffness. Sewn onto the outside cover of each case is the logo "CLIK!CASE." A flexible plastic band is sewn onto one interior side of each case near the spine. Each end of the band terminates in an open ring which folds upward. The rings serve as anchors designed to hold either 6 or 12 molded plastic CD holders (capable of organizing 12 or 24 CDs).

Although molded plastic CD holder inserts were submitted with the samples to show the condition in which the cases reach the ultimate consumer, the holders are assembled/inserted into the cases only after importation into the United States. An average person would probably complete the simple assembly process for one case in less than 30 seconds. United States Patent information concerning the "Compact CD Case" states that "[a] carrying case is provided for storing and transporting a plurality of relatively flat, thin items such as compact discs or the like. The carrying case comprises an outer shell defining an enclosed compartment for housing a plurality of items...."

ISSUE:

Whether the cases, as imported, are classified in heading 6307, HTSUS, as other made up textile articles; or in heading 4202, HTSUS, as containers similar to those enumerated in the heading.

LAW AND ANALYSIS:

Classification under the HTSUS 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 -3-
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.

Heading 6307, HTSUS, covers other made up textile articles, including dress patterns. Note 1(l) to Section XI (the section in which chapter 63 falls) states that "[t]his section does not cover: Articles of textile materials of heading 4201 or 4202." The EN to heading 6307 indicate that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. EN (b) to heading 6307 states that the heading excludes "[t]ravel goods (suit-cases, rucksacks, etc.), shopping-bags, toilet-cases, etc., and all similar containers of heading 42.02." Therefore, if the CD cases are of a kind similar to those of heading 4202, HTSUS, they are not covered in heading 6307 nor in any other heading under Section XI.

Heading 4202, HTSUS, provides, in part, for camera cases, musical instrument cases, and similar containers. Although CD cases are not expressly listed as an exemplar of heading 4202, Customs has held that CD cases - including "unfinished" cases imported without CD-holding inserts - are classifiable as being "similar" to the containers of the heading. See Headquarters Ruling Letters (HRLs) 953459 (issued May 6, 1993), 953171 (February 26, 1993), and 951080 (May 14, 1992). In making such determinations, Customs has noted that there is no requirement that cases of heading 4202, HTSUS, be specially fitted to accommodate particular objects, possess handles or straps, nor be constructed with rigid exteriors. The containers of heading 4202 have in common the purpose of providing storage, protection, and convenient transportation for their contents. EN(c) to heading 4202 states, in part, that "[t]he heading does not cover: Articles which, although they may have the character of containers, are not similar to those enumerated in the heading...."

The protestant essentially contends that Customs reasoning is inapplicable to the imported goods because, at the time of importation, they are not CD holders, but merely generic folders without the essential character of finished CD holders. The protestant cites to GRI 2(a), which states, in part, that:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. -4-

The protestant asserts that, since the essential character of a CD holder is its ability to store and protect compact discs, the essential character of the finished CD case is imparted by the plastic, CD-holding inserts, not by the outer case that is imported. The protestant cites to Court cases and Customs rulings to support assertions that the outer case is insufficiently finished to allow Customs to identify the completed article and fix classification in heading 4202, HTSUS.

Protestant notes that, after importation, inserts could be installed in the case and the finished product be used to store, protect, transport, and organize coin, stamp, or other collections; or the case could be used as the outer portion of a photo album, ship's log, or field diary; all of which could fall within heading 4820, HTSUS. The protestant maintains that, since the imported cases are incomplete and do not possess the attributes that would distinguish them as CD holders, they cannot properly be classified in heading 4202, and must be classified in subheading 6307.90.99, HTSUS.

Although the imported merchandise may be deemed incomplete or unfinished CD holders, the cases are essentially complete carrying cases possessing the essential characteristics common to containers of heading 4202, HTSUS. Although the addition of plastic CD-holders eventually provides an organizational aspect to the cases, the goods, as entered, are fully functional containers that provide storage, protection, and portability for the items they hold. Consequently, we find them to be articles of a kind similar to those of heading 4202 and, pursuant to GRI 1, are classifiable thereunder, regardless of the interior fittings present or absent at the time of importation. The cases are thus excluded from coverage under heading 6307, HTSUS.

We disagree with protestant's contention that, if assembled with certain other inserts after importation, the imported cases would be as suitable for use as articles of heading 4820, as for use as cases of heading 4202. As noted in the FACTS section, patent information shows that the imported cases are designed and dedicated to function as carrying cases. The contents of these carrying cases are, by necessity, stored in a secure (foam-padded) enclosure (three-dimensional, not flat) that is capable of complete envelopment (being zippered on all three sides). The contents of these and similar containers are usually removed for use and replaced in the case or other secure environment after

Heading 4820, HTSUS, covers diaries, binders, folders, albums for samples or collections, and myriad other stationery-like articles that generally contain other flat items. The goods contained in articles similar to those of heading 4820 are not generally removed for use, but remain within the enclosing article, often for display (of a collection, photographs, records, etc.). Attributes pertinent to the imported cases (e.g., zipper closure, foam padding, three-dimensional enclosure) would appear to be somewhat misplaced if the cases were converted to articles of heading 4820 after importation.

We thus find that the goods were properly classified in subheading 4202.92.9025, HTSUSA, the provision for "Trunks... camera cases, musical instrument cases...and similar containers...: Other: With outer surface of sheeting of plastic or of textile materials: Other: Other."

HOLDING:

The compact disc cases are properly classified in subheading 4202.92.9025, HTSUSA, textile category 670, the provision for "Trunks...binocular cases, camera cases, musical instrument cases...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 applicable duty rate (in 1995) is 19.8 percent ad valorem.

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.

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. -6-

The protest should be denied in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

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 to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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