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HQ 962912




March 20, 2000

CLA-2 RR:CR:GC 962912 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8471.70.90

Port Director
U.S. Customs Service
1624 E. 7th Avenue
Tampa, FL 33605

RE: Protest 1801-98-100023; Tape Storage Units; Storage Units Not Assembled in Cabinets for Placing on a Table, Desk, Wall, Floor or Similar Place; HQs 950238, 951802, 957649; NY 887685

Dear Port Director:

The following is our decision regarding Protest 1801-98-100023, which concerns the classification of M4 Data tape storage unit, model 9906, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is the M4 Data tape storage unit, model 9906. The model 9906 tape storage unit is designed to provide additional storage capabilities for automatic data processing (ADP) systems. The unit is a single speed tape drive, which uses open reels of standard, half-inch computer tape on IBM-style hubs. At the time of importation, the model 9906 tape storage unit was a self-contained unit consisting of a plastic top surrounded by a metal cabinet. Each unit had 4 black rubber feet on the bottom.

The merchandise was entered on April 30, July 22 and 29, and September 16 and 23, 1996 under subheading 8471.70.60, HTSUS, as storage units not assembled in cabinets for placing on a table, desk, wall, floor or similar place. The entries were liquidated on February 20, 1998, under subheading 8471.70.90, HTSUS, as other storage units. The protest was timely filed on May 12, 1998.

The subheadings under consideration are as follows:

8471.70: Automatic data processing machines and units thereof; . . . : [s]torage units: [o]ther storage units:

8471.70.60: Not assembled in cabinets for placing on a table, desk, wall, floor or similar place . . . . .

Goods classifiable under this provision have a general, column one rate of duty of free.

8471.70.90: Other. . . . .

Goods classifiable under this provision have a general, column one rate of duty of 2.2 percent ad valorem.

ISSUE:

Whether the subject model 9906 tape storage units are classifiable as storage units assembled in cabinets for placing on a table, desk, wall, floor or similar place, under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

There is no dispute that the model 9906 tape storage units are ADP storage units, classifiable under heading 8471, HTSUS. The issue here is whether, as imported, the storage units are “assembled in cabinets for placing on a table, desk, wall, floor or similar place”. In NY 887685, dated July 13, 1993, Customs determined that the model 9906 tape storage units supplied with a kit to rack mount in a 19-inch cabinet was classifiable as an ADP storage unit for internal use under subheading 8471.93.50 [now 8471.70.60], HTSUS. Customs also determined that the model 9906 tape drive unit, when imported in a condition ready for “desk-top use” (with cabinet and option kit included) would be classifiable under subheading 8471.93.60 [now 8471.70.90], HTSUS. Counsel for protestant argues that the units are neither assembled in cabinets, nor suitable for desktop use because they were not entered with metal covers and plastic inserts, referred to as the optional kit in NY 887685.

The term "cabinet" is not defined in the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes (ENs), which constitute the official interpretation of the HTSUS. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). In HQ 951802, dated October 8, 1992, Customs stated that:

A cabinet is described as an upright case housing a radio or television receiver. Webster's Third New International Dictionary, p. 309 (1986). The subject unit is enclosed in a case with feet which houses the unit in a manner similar to that of a small radio receiver. We do not interpret the term "cabinet" to encompass only a piece of furniture or housing for a television, but also an enclosure such as that which houses a small radio. Therefore, we are of the view that a unit housed in a manner similar to that of a radio, is assembled in a cabinet, and thus does not satisfy the terms of subheading 8471.93.30, HTSUS [which provides for magnetic disk drive units not assembled in cabinets].

In determining whether or not a storage unit is assembled in cabinets for placing on a table, desk, wall, floor or similar place, Customs must look at the physical characteristics of each individual model at the time of importation. See HQ 950238, dated November 26, 1991, in which Customs held that storage units differing in heights depending on whether they were designed as free-standing desktop model or rack-mounted models, were classified under subheadings 8471.93.60 and 8471.93.50 [now, 8471.70.90 and 8471.70.60], HTSUS, respectively. In HQ 957649, dated December 15, 1995, the importer argued that CD-ROM changers having a “dual” use for being placed on a desktop or on a rack should be classified based upon its ability to permit rack use. Customs examined the CD-ROM Changers and found that they were in a plastic housing forming a cabinet, and on the bottom of each Changer were: either four footpads; four wheels; or, 2 footpads and 2 wheels. Customs determined that based upon these physical characteristics, that these goods are classifiable as ADP storage units assembled in cabinets for placing on a table, desk, wall, floor or similar place.

In the present situation, we note that the subject merchandise has the following physical characteristics: the model 9906 tape storage unit had a plastic cover and had 4 black feet on the bottom of the units. Based upon the application of the HQ rulings cited above, we find that the model 9906 tape storage units, as imported, are classifiable as ADP storage units assembled in cabinets for placing on a table, desk, wall, floor or similar place.

HOLDING:

For the foregoing reasons, the subject model 9906 tape storage units are classifiable under subheading 8471.70.90, HTSUS, which provides for: “[a]utomatic data processing machines and units thereof; . . . : [s]torage units: [o]ther storage units: [o]ther. . . . .” Goods classifiable under this provision have a general, column one rate of duty of 2.2 percent ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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