OT:RR:CTF:TCM H291068 CkG
TARIFF NO: 4202.92.90
Port Director
U.S. Customs and Border Protection
Port of Los Angeles/Long Beach
301 E. Ocean Blvd.
Long Beach, CA 90802
ATTN: James L Henderson, Import Specialist
Re: Application for Further Review of Protest No. 2704-17-103160; classification of CD/DVD cases
Dear Port Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 2704-17-103160, dated August 16, 2017, on behalf of Best Buy Co., Inc. (“Protestant”), contesting U.S. Customs and Border Protection’s (CBP) classification and liquidation of ten entries of CD/DVD cases in heading 4202, HTSUS.
The subject entries were made between April 05, 2016, and June 27, 2016. The entries were made under heading 4202, HTSUS, specifically subheading 4202.92.90, HTSUS, as “other” containers with outer surface of sheeting of plastic or textile materials, and liquidated between February 17, 2017 and May 12, 2017, in subheading 4202.92.90, HTSUS. Protestant currently claims classification in heading 4820, HTSUS, specifically subheading 4820.50.00, HTSUS, as albums for samples or for collections.
We have also taken into consideration additional information received from the protestant on July 25, 2019 and August 20, 2019.
FACTS:
The merchandise at issue consists of 12 styles of CD/DVD cases, constructed
with a paperboard core and covered with either nylon or a plastic imitation leather
material (“Koskin”). Each album contains blank sheets of plastic either permanently
affixed to the spine of the case, or attached via a binder mechanism with plastic straps,
allowing for removal of the pages. Each sheet contains pockets for insertion or removal
of CDs or DVDs. The capacity of each case ranges from 16 to 400 CDs or DVDs.
Each album has a zipper closure, and the cases with a capacity of 100 or more CDs
also have a handle.
ISSUE:
Whether the subject merchandise is classified in heading 4202, HTSUS, as
trunks, suitcases, etc. or similar containers, or in heading 4820, HTSUS, as binders or
albums.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-17-103160 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS provisions under consideration are as follows:
4202: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
4820 Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard:
Additional U.S. Note 2 to Chapter 42, HTSUS, provides that for purposes of classifying an article under subheading 4202.92, “articles of textile fabric impregnated, coated, covered or laminated with plastics (whether compact or cellular) shall be regarded as having an outer surface of textile material or of plastic sheeting, depending upon whether and the extent to which the textile constituent or the plastic constituent makes up the exterior surface of the article.”
Note 1 to Chapter 48, HTSUS, states that for the purposes of this chapter, “except where the context otherwise requires, a reference to ‘paper’ includes references to paperboard (irrespective of thickness or weight per m²).”
Note 2 to Chapter 48 provides, in pertinent part:
2. This chapter does not cover:
(h) Articles of heading 4202 (for example, travel goods);
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings. See Treasury Decision (T.D.) 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 42.02, HTS, states, in relevant part, as follows:
This heading covers only the articles specifically named therein and similar containers. … Subject to Notes 2 and 3 to this Chapter, the articles covered by the first part of the heading may be of any material. The expression “similar containers” in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.
The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.). The term “leather” includes chamois (including combination chamois) leather, patent leather, patent laminated leather and metallised leather (see Note 1 to this Chapter). The expression “similar containers” in this second part includes note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewellery rolls, shoe-cases, brush-cases, etc. . . . . The heading does not cover: . . . . (c) 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, blotting pads, photo-frames, sweetmeat boxes, tobacco jars, ashtrays, flasks made of ceramics, glass, etc., and which are wholly or mainly covered with leather, sheeting of plastics, etc. Such articles fall in heading 42.05 if made of (or covered with) leather or composition leather, and in other Chapters if made of (or covered with) other materials . . .
EN 48.20 states, in pertinent part
This heading covers various articles of stationery, other than correspondence goods of heading 48.17 and the goods referred to in Note 10 to this Chapter. It includes:
…
(3) Binders designed for holding loose sheets, magazines, or the like (e.g., clip
binders, spring binders, screw binders, ring binders), and folders, file covers, files (other than box files) and portfolios.
…
(6) Albums for samples or for collections (e.g., stamp, photograph).
* * * *
The instant CD/DVD cases were liquidated in heading 4202, HTSUS. Protestant claims classification in heading 4820, HTSUS, pursuant to Avenues in Leather, Inc. v. United States, 423 F.3d 1326 (Fed. Cir. 2005), Headquarters Ruling Letter (HQ) H244107, dated March 13, 2017, and Global Sourcing Group, Inc. v. U.S., 611 F. Supp. 2d 1367 (CIT 2009).
Note 2 to Chapter 48 excludes goods of heading 4202 from Chapter 48, meaning that if the instant albums are prima facie classified in heading 4202, they cannot be classified in heading 4820, HTSUS. Protestant argues that the albums should be classified in heading 4820 because it is more specific than heading 4202; however, if the articles are classifiable on their face in heading 4202, the instant legal note requires that they be classified therein, regardless of which heading is considered more “specific”. Therefore, we must first consider whether the instant articles are prima facie classifiable in heading 4202.
CD/DVD cases, covers or albums are not specifically named in the text of heading 4202; the question is whether they may be considered “similar containers” within the scope of the heading. Interpreting the term "similar containers" requires an ejusdem generis analysis to determine if the goods are "of the same kind" as those listed in the heading. In classification cases, ejusdem generis requires that, for any imported merchandise to fall within the scope of the general term or phrase, the merchandise must possess the same essential characteristics or purposes that unite the listed exemplars preceding the general term or phrase. The particular characteristics that unite the exemplars in heading 4202, HTSUS, are organizing, storing, protecting and carrying. Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867 (Ct. In’t Trade 1994). There is no requirement that the subject merchandise meet all four characteristics to qualify as a "similar container" under heading 4202. Otter Prods., LLC v. United States, 834 F.3d 1369 (Fed. Cir. 2016).
The instant CD/DVD album cases share all of the essential characteristics of items of heading 4202, namely, that of storing, organizing, protecting and transporting CDs or DVDs; the CDs or DVDs are stored in the plastic pockets of each sheet, are organized via the individual sheets, are protected from dust, spills, and other hazards by the plastic pockets and the zipper closure, and are transported either by hand (for the smaller capacity cases) or by the handle attached to the larger capacity cases.
Although the protestant argues that even with the handle the cases would be too unwieldy and heavy to transport when full, and that they are primarily used for storage on a shelf or cabinet, we note that the CD cases without handles can be easily carried by hand when full, and the handle on even the largest capacity case of 400 discs clearly makes the case more useful and convenient for transporting a large media collection, as compared to similar cases without handles. Furthermore, we note that a compact disc weighs approximately half an ounce. The largest case of 400 discs would only weigh 12.5 additional pounds when full—significantly less than many articles classified in 4202, such as a full tool bag or luggage. Indeed, many articles specifically named in heading 4202, such as trunks and suitcases, are heavy and cumbersome when filled, but have handles or wheels to facilitate their transport.
Finally, the degree of protection offered by the cases itself indicates an intent that they be used for transport—albums for photo or stamp collections typically do not feature zipper closures designed to protect against casual exposure to rain or other elements, because items designed to stay permanently indoors on a shelf or coffee table are unlikely to require such protection. Thus, both the small and large capacity cases fulfill all of the requirements of heading 4202 and share all of the relevant characteristics of articles of heading 4202.
In addition to sharing the characteristics first enumerated in Totes, the album cases are containers similar to the wallets, tool bags, cigarette cases, or cutlery cases listed in the second part of the heading, which are also used to store, protect, organize and/or transport specific articles. Wallets, for example, similarly transport, store, organize and protect flat objects, whereas tool bags are heavy and unwieldy when full and require a handle for easier transport. Indeed, various of the models at issue are specifically described as “wallets”—the 16, 32, 72, 128, and 336 capacity cases are called “CD wallets” and are sold and marketed as such. In contrast, the instant CD/DVD cases do not resemble the items mentioned in the exclusionary Explanatory Note to heading 4202—i.e., book covers, sweetmeat boxes, photo frames, etc.
The instant CD/DVD album cases are composed of a paperboard core, covered with nylon or artificial (plastic) leather material. As articles similar to those containers provided for in the second part of heading 4202, the instant albums must be made of leather, composition leather, sheeting of plastics, textile materials, vulcanized fiber or paperboard, or wholly or mainly covered with such materials or with paper. As the CaseLogic albums are made of paperboard and covered with either textile material or sheeting of plastic, they fall squarely within the second part of heading 4202, HTSUS.
As such, they cannot be classified in heading 4820, HTSUS, pursuant to Note 2 to Chapter 48.
This conclusion is consistent with CBP rulings classifying similar “binders” and cases for storage of multiple CDs or DVDs in heading 4202, HTSUS. See HQ 953175, dated February 17, 1993; HQ 958773, dated July 29, 1996; HQ 962450, dated August 23, 1999; HQ 960244, dated March 21, 2000; HQ 960527, dated April 11, 2000; NY F82731, dated February 22, 2000; NY L89563, dated January 26, 2006; and NY C85714, dated April 20, 1998.
Furthermore, unlike the merchandise at issue in HQ H244107 or Global Sourcing Group, Inc., the instant albums have handles that make them significantly easier to carry than similarly large binders or albums. In addition, the instant items are distinguishable from the folios at issue in Avenues of Leather, because they do not have the character of memorandum or letter pads or other articles of stationery; i.e., unlike the Calcu-Folios classified by the CIT and Federal Circuit in heading 4820, HTSUS (or the binders and folders enumerated in EN 4820), the instant articles have as their primary purpose the organization, storage, protection and transport of CDs and DVDs, as opposed to the taking of notes, or organization of writing material and implements.
Finally, the instant cases are not similar to albums for samples or collections of heading 4820; unlike albums for stamps or photos, the instant albums are not designed for display of collections. CDs and DVD are functional items, designed for use rather than display. The zipper closures on the instant cases hide the contents from view, rather than display them. The transparent plastic pockets are not designed for display but rather for ease of organization and identification of the contents of the case. Indeed, unlike photographs or stamps, CDs and DVDs have a practical purpose—they are intended to be used. The cases are designed to facilitate this use by providing easy access to the discs, allowing the user to remove and reinsert a specific disc as necessary—a key distinction between articles of heading 4202 and 4820.
HOLDING:
By application of GRIs 1 and 6, the CaseLogic CD/DVD album cases covered with nylon are classified in heading 4202, specifically subheading 4202.92.90 of the 2016 HTSUS, which provides for “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Other: With outer surface of sheeting of plastics or of textile materials: Other: Other.” The 2016, column one, general rate of duty is 17.6% ad valorem.
You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing
Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 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 make the decision available to CBP personnel, and to the public online at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division