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HQ 960244




March 21, 2000

CLA-2 RR:CR:TE 960244 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.9026

Mark R. Sandstrom, Esquire
Thompson Hine & Flory, P.L.L.
1920 N Street, N.W.
Washington, D.C. 20036-1601

RE: Reconsideration of NY A88419; CD-Rom and Diskette Cases; Binders/Cases with Inserts of Plastic, Disc-Holding Pages

Dear Mr. Sandstrom:

This letter is in response to your request of February 11, 1997, on behalf of your client, the School and Office Products Division of the Mead Corporation, for reconsideration of New York Ruling Letter (NY) A88419, issued October 28, 1996, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of articles identified as a computer binder, a CD-Rom binder, and a diskette binder, all imported with plastic pages and all made in China. Samples were submitted with the request. We regret the delay in responding.

FACTS:

In NY A88419, 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 “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 three articles, identified in NY A88419 as item numbers 46002, 33008, and 33010 (and identified as sample numbers 1, 2, and 3, respectively, in this reconsideration), are described as cases which fold roughly in half, which close by means of a nylon coil zipper extending around three sides, and whose inner and outer surface layers are composed of nylon textile fabric. Between the textile fabric layers are a layer of foam plastic padding and a plastic stiffener. The exterior spine of each case features plastic reinforcement and a slot with a clear plastic window for display of identifying information.

Sample no. 1 measures approximately 13 inches in height by 12 inches in width by 2-1/2 inches in depth (in the closed position). The right interior side of the case features a large, full height sleeve into which is slipped a plastic sheet. A three ring binder mechanism is riveted onto the sheet. The rings measure approximately 1-3/4 inch in diameter. Several hole-punched inserts are held in place by the binder mechanism and these consist of one clear plastic page designed to hold two computer CD-Roms, two clear plastic pages designed to hold a total of eight computer diskettes, and three paperboard pages tabbed to serve as dividers. The left interior side of the case features a large, full height, gusseted pocket. The gusset allows the pocket to expand to approximately 1-1/4 inch in depth. Overlying the large pocket are six slots for business or credit cards, one flat pocket with a transparent plastic window for an identification card, and three tubular pen holder pockets.

Sample no. 2 measures approximately 6 inches in height by 7 inches in width by 2 inches in depth (in the closed position). The right interior side of the case has a full height sleeve into which is slipped a plastic sheet. A two ring binder mechanism is riveted onto the sheet and the rings measure approximately 1 inch in diameter. Twelve hole-punched inserts, consisting of clear plastic pages designed to hold computer CD-Roms, are held in place by the binder mechanism. The left interior side of the case has one full width, flat pocket for holding papers.

Sample no. 3 measures approximately 10 inches in height by 5-1/2 inches in width by 1-3/4 inch in depth (in the closed position). The right and left interior sides of the case feature full height sleeves into which are slipped the plastic sheets which anchor the main insert. This insert consists of ten clear plastic pages, each designed to hold two computer diskettes. The left interior side of the case features six slots (for business or credit cards), all of which lie on top of the left sleeve.

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 3926, HTSUSA, which covers other articles of plastics.

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.

You essentially contend that the three articles at issue are “binders” which, despite having the character of containers, are not similar to the containers enumerated under heading 4202, HTSUSA, and are therefore excluded from the heading by EN (c). Correctly noting that binders composed of paper are covered under heading 4820, HTSUSA, you cite to NY 808394, issued April 4, 1995, and to NY 892472, issued December 15, 1993, asserting that the subject articles should be classified in
subheading 3926.10.0000, HTSUSA, as binders whose essential character is imparted by their plastic pages. We find no support for this position, however, in either of the cited rulings.

In NY 808394, the merchandise at issue consisted essentially of printed paper pages that were designed to receive notations of daily activities, and the pages are bound with vinyl or textile covers. On that basis, the articles were classified in subheading 4820.10.2010, HTSUSA, as bound diaries. In NY 892472, the merchandise at issue consisted of a photograph album with 60 plastic photo sleeve pages and a paper and cardboard cover. The essential character was found to be imparted by the plastic pages and the article was classified in subheading 3924.90.5500, HTSUSA, as an other household article of plastics. We find few similarities between the vinyl, textile, and paper/cardboard covers of the cited rulings and the cases at issue here, all of which are of durable construction (textile materials with plastic for padding and reinforcement) with multiple compartments and zippered closures. 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 these descriptions. As the Court stated in Totes, “Precise functional equivalence to, or commercial interchangeability with, any one particular exemplar enumerated in the Heading plainly is not required by the rule of ejusdem generis.” 865 F. Supp. at 874. “[T]he 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.

Customs has generally classified articles that, like binders, have the character of containers but lack similarity to the containers enumerated in heading 4202, following the guidance of EN(c) to heading 4202, according to the materials the articles are made of or covered with. Those 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 merchandise, chapter 39, HTSUSA, covers plastics and articles thereof. Heading 3926, HTSUSA, covers “Other articles of plastics and articles of other materials of headings 3901 to 3914.” Like heading 4205, the language of heading 3926 does not enumerate book covers, reading jackets, file covers, or document jackets as exemplars. In pertinent part, however, the EN to heading 3926 state that the heading covers articles of plastics which include:

...file-covers, document-jackets, book covers and reading jackets, and similar protective goods made by sewing or glueing together sheets of plastics.

Since note 2(ij) to chapter 39, HTSUSA, states that “[t]his chapter does not cover...trunks, suitcases, handbags or other containers of heading 4202,” the cases at issue cannot be classified under heading 3926 if they are classifiable under heading 4202, HTSUSA. It must be determined, then, whether the articles’ primary purpose is to organize, store, protect, and carry various items, or merely to function as a binder, jacket, or cover. We find that cases for CD-Roms and computer diskettes possess the physical attributes of articles classifiable in the heading, and that they are similar to binocular cases, camera cases, musical instrument cases, and similar containers that are specially shaped or fitted for particular contents.

In HQ 958773, issued July 29, 1996, we considered the classification of cases very similar to those at issue here, but which were imported without binding mechanisms and/or inserts. The cases were to be fitted after importation to hold compact discs. The protestant had claimed that the merchandise should be classified as generic binders in subheading 6307.90.9989, HTSUSA (the provision in which book covers, reading jackets, file-covers, document-jackets, etc., would be classified if made of or covered with textile materials), because without the CD-holding, plastic inserts, the cases were said to lack the essential character of finished CD cases. We noted that, despite the absence of the special inserts, the cases, as imported, were designed and dedicated to function as carrying cases that provided a secure, foam-padded, three-dimensional enclosure to completely envelope any items carried. Although the plastic CD-holding inserts would, after importation, provide an organizational aspect to the cases, we found that the articles, as entered, were fully functional containers capable of providing storage, protection, and portability. Although incomplete, unfinished, and not named exemplars of heading 4202, the cases possessed the essential characteristics common to the containers of heading 4202, and they were classified in subheading 4202.92.9025, HTSUSA. See also HQ 962450, issued August 23, 1999, HQ 961457, issued April 6, 1998, and HQ 959126, issued May 13, 1996.

Since the cases at issue here are imported with the disc-holding inserts that were absent in HQ 958773, these articles are able to organize – in addition to being able to store, protect, and carry - the contents they are designed to hold. We thus find that the three cases are classifiable under heading 4202 and, as such, they are precluded from classification under heading 3926 by note 2(ij) to chapter 39, HTSUSA. The three cases are classified in subheading 4202.92.9026, HTSUSA.

HOLDING:

The articles identified as sample numbers 1, 2, and 3 (and identified in NY A88419 as item numbers 46002, 33008, and 33010, respectively) 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.

NY A88419, issued October 28, 1996, 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.

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,


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