CLA-2 OT:RR:CTF:TCM H007467 HvB
Mr. Darren Lenox
Customs Compliance Manager
Acco Brands Corp.
300 Tower Parkway
Lincolnshire, Illinois 60069-3640
RE: Modification of New York Ruling Letter (NY) N005439; classification of an iPod® FM Transmitter
Dear Mr. Lenox:
This is in response to your letter, dated February 14, 2007, in which you requested that we reconsider the classification of the plastic car mount that was the subject of NY N005439, issued to you on February 7, 2007. We also considered additional information that you submitted to this office on August 6, 2009 and on June 25, 2010. However, as explained below, we withdraw the proposal to modify N005439 with respect to the plastic car mount, due to litigation on similar merchandise, in the case of Jing Mei Automotive Products (USA) v. United States (CIT No. 13-00321) which is currently pending before the Court of International Trade.
In NY N005439, U.S. Customs and Border Protection (“CBP”) classified the plastic car mount for an FM transmitter under heading 3926, Harmonized Tariff Schedule of the United States (“HTSUS”), as an article of plastic. In addition, NY N005439 also classified an FM transmitter in heading 8525, HTSUS, specifically in subheading 8525.60.20, HTSUS, which provides for transmission apparatus for radio-broadcasting which incorporate a reception apparatus. We have reviewed this ruling letter in its entirety and believe that it is partially in error. For the reasons set forth below, we hereby modify NY N005439 with respect to the classification of the FM transmitter. The remaining analysis of NY N005439 remains unchanged.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published on June 23, 2010, in the Customs Bulletin, Volume 44, No. 26. One comment was received in response to the notice. Due to pending litigation in the Court of International Trade on the Jing Mei Automotive (USA) v. United States, (CIT No. 13-00321) , CBP withdraws its proposal with respect to the plastic car mount, as classified in NY N005439.
FACTS:
In NY N005439 we described the products as follows:
The subject merchandise, based on the submitted sample, is an FM transmitter auto kit, item number 33387, which consists of the following:
1) a FM receiver/transmitter that is designed to be plugged into the car’s DC power outlet (i.e., cigarette lighter) for activating the transmitter’s display; this device has a self-contained cable with a 30-pin dock connector that is designed for insertion into an iPod’s dock-connecting port for charging an iPod (not included). When the iPod is turned on, the transmitter receives the iPod’s music files and wirelessly transmits (not enabled by the DC power outlet) the music to the car radio through an unused FM channel/frequency, which is selected by the user.
2) a plastic car mount that is designed to hold an iPod or a similarly constructed MP3 Player; this article incorporates, at one end, a flexible, goose-like arm with a suction cup, as well as a rectangular-shaped holder, at the other end, with adjustable, expanding sides, which possess inner foam-like padding.
When imported as a kit, this merchandise, at the time of importation, will be put up in a manner suitable for sale directly to users without repacking.
ISSUE:
Whether the FM transmitter is properly classifiable in subheading 8525.50.70, HTSUS, as a transmission apparatus for radio-broadcasting or in subheading 8525.60.20, HTSUS, as a transmission apparatus incorporating a reception apparatus?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 3 governs the classification of goods that are prima facie classifiable in two or more headings, including, inter alia, goods put up in sets for retail sale. GRI 3(b) provides, in relevant part, that "goods put up in sets for retail sale… shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
8525 Transmission apparatus for radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders:
8525.50 Transmission apparatus:
8525.50.70 For radiobroadcasting…
8525.60 Transmission apparatus incorporating reception apparatus:
8525.60.20 Other…
* * *
Upon receipt of your request for reconsideration of this ruling letter, we determined that the subject FM transmitter does not incorporate a reception apparatus. There is no information in your recent submissions, or in your initial submissions requesting a binding ruling, which indicates that the device contains a reception apparatus. Therefore, the proper subheading for the FM transmitter is subheading 8525.50.70, HTSUS, which provides for a transmission apparatus for radio-broadcasting.
In your comment you submitted on June 25, 2010, you argued that the FM Transmitters should stay classified in subheading 8525.60.20 based on the application of EN 85.25 and based upon our decision in NY K84903, dated April 8, 2004. Specifically, you state that the EN to heading 85.25 which states that a transmission apparatus “must be for the transmission of signals by means of electro-magnetic waves transmitted through the ether without any line connection” only applies to the transmission apparatus and not to the reception apparatus. CBP does not disagree with you that this language in the EN applies only to the transmission apparatus. However, the cited EN clarifies the scope of heading 85.25 and therefore describes products classifiable under both subheadings at issue. Further, we do not agree that the subject FM Transmitters are identical to the product we ruled upon in NY K84903. In response to this comment, CBP reviewed its file on that ruling and determined that the product in that case is substantially different than the FM transmitter in this case. The FM transmitter that was the subject of NY K84903 had the ability to receive AM/FM signals and could play the radio stations received on that product. As noted above, there is no indication that your product has that ability. Therefore, this ruling will not have the effect of modifying or revoking NY K84903.
Finally, the determination that the plastic car mount and FM transmitter, when imported together in a package for retail sale are considered a set pursuant to GRI 3(b) remains the same. However, the classification of the set will change to reflect the classification of the FM transmitter as provided in this letter.
HOLDING:
By application of GRI 1, the FM transmitter is classified in heading 8525, HTSUS, specifically in subheading 8525.50.70, HTSUS, which provides for “[t]ransmission apparatus for radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders: [t]ransmission apparatus: [f]or radiobroadcasting…” The column one general rate of duty is 3% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web, at http://www.usitc.gov.tata/hts/.
EFFECT ON OTHER RULINGS:
NY N005439, dated February 14, 2007, is hereby MODIFIED with respect to the FM transmitter.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon
Director, Commercial and Trade Facilitation Division