CLA-2 OT:RR:CTF:TCM H071756 RES
Port Director
U.S. Customs and Border Protection
Service Port
Room 210
477 Michigan Avenue
Detroit, MI 48226
RE: Tariff classification of Gentex Corporation Radio’s Frequency Transceivers; Application for Further Review of Protest Number 3801-09-100180.
Dear Port Director:
This letter is in reply to your memorandum, dated September 9, 2009, regarding the Application for Further Review (“AFR”) of Protest Number 3801-09-100180 filed on behalf of Gentex Corporation (“Gentex”/”Protestant”). The protest is against the U.S. Customs and Border Protection’s (“CBP”) classification of Homelink Modules for use as remote control garage door openers under the 2007 Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue in the instant AFR is the Homelink Module (“Module”), which is described by Gentex as being a radio frequency (“RF”) transceiver device that functions as a remote control garage door opener. The Module is composed of: a printed circuit board with an antenna; a RF receiver circuit and RF transmission circuit; various electronic components such as
resistors, capacitors, diodes, etc; three buttons; and an LED indicator. The Module is mounted on the interior rearview mirror of a vehicle and functions by programming the original remote control garage door opener into it and then using the Module to open a garage door remotely by pressing the appropriate button.
The Homelink Module was entered on December 26, 2007, under heading 8526, HTSUS, which provides for “[r]adar apparatus, radio navigational aid apparatus and radio remote control apparatus: [o]ther: [r]adio remote control apparatus.” The merchandise was liquidated on November 7, 2008, under the same heading and, subsequently, Gentex filed a protest on May 6, 2009, challenging CBP’s classification of the Module. Gentex asserts that the proper classification for the Module is under heading 8517, HTSUS, as “[t]elephone sets . . . other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network . . . other than transmission or reception apparatus of heading 8443, 8525, 8527, or 8528; parts thereof.”
ISSUE:
Whether the subject Homelink Module is classified under heading 8517, HTSUS, as an apparatus for the reception, conversion, and transmission or regeneration of data, or under heading 8526, HTSUS, as a radio control apparatus?
LAW AND ANALYSIS:
Initially, CBP notes that the protest was timely filed on May 6, 2009, which is within 180 days after the date of the November 7, 2008, liquidation. See 19 U.S.C. § 1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2).
Further Review of Protest No. 3801-09-100180 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (a) because the protestant asserts that CBP’s classification of the Homelink Module is inconsistent with the New York Ruling (“NY”) N056388, dated April 6, 2009.
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 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 2 through 6 may be applied in order.
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 HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading at the international level, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following HTSUS provisions are under consideration:
8517 Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide are network), other than transmission or reception apparatus of heading 8443, 8525, 8527 or 8528; parts thereof:
8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus:
Gentex claims that the Homelink Module is classifiable under heading 8517, HTSUS, and in support of this claim cites to EN 85.17, which provides in pertinent part:
This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electro-magnetic waves in a wireless network. The signal may be analogue or digital. The networks, which may be interconnected, include telephony, telegraphy, radio-telephony, radio-telegraphy, local and wide area networks.
According to EN 85.17, the type of apparatus that are classifiable in heading 8517 are ones that are involved in the transmission or reception of sounds, images, and data between two points in a network. Gentex argues that the Homelink Module is part of a network. However, a network is defined as “[a]n interconnection of three or more communicating entities.” By definition, the Homelink Module is not part of a communication network because it does not have any interconnection with another entity. The Homelink Module is not interconnected with the garage door opener. When activated, the Homelink Module simply sends out a radio signal which is then detected by the garage door opener RF receiver. There is no interconnection or channel of communication established between the Module and the garage door opener RF receiver as the signal is sent one way: there is no responsive communication from the garage door opener back to the Homelink Module. Furthermore, even if the Homelink Module and the garage door opener receiver engaged in some type of two-way communication, they are not comprised of a network because they are simply communicating between each other and not with any additional entities or nodes. Finally, the radio frequency signal that the Homelink Module sends does not meet the definition of “data” as that term is defined in telecommunications. “Data” is defined as information that has been translated into a form that is digitally transmitted or processed. Data communication is defined as “[t]he transfer of information between functional units by means of data transmission [sending from one place to another by means of signals over a channel] according to a protocol.” The Homelink Module does not transmit any type of information in digital form but instead emits a radio frequency signal that the garage door receiver simply detects. If it is the correct radio frequency, then whatever particular function is associated with that frequency is triggered, i.e., the garage door is opened. If it is an incorrect radio frequency, then nothing happens. No information is exchanged or transmitted, only the emitting and detection of a radio frequency. Therefore, the Homelink Module is not classifiable in heading 8517, HTSUS, because it is not part of a telecommunication network and does not transmit data.
Gentex also asserts that CBP’s classification of the Homelink Module under heading 8526, HTSUS, is inconsistent with the classification of an RF receiver module in NY N056388, dated April 6, 2009. In NY N056388, CBP classified an article called an RF receiver module that was part of an automotive remote keyless entry and theft deterrent system. This RF receiver module was installed in a vehicle’s rearview mirror and functioned by receiving radio signals from a wireless remote and relaying those signals, via electrical cable, to the actual theft deterrent system. The RF receiver module in NY N056388 simply acted as a receiver of signals and a relay and did not send radio waves remotely to any type of machine. In contrast the Homelink Module actually sends radio waves remotely to a garage door apparatus that triggers the garage door to perform the functions of opening and closing. Thus, because the RF receiver module and the Homelink Module perform two entirely different functions, NY N056388 is not pertinent to the classification of the Homelink Module.
The function of remotely controlling another device through radio frequencies is appropriately described in heading 8526, HTSUS. EN (12) 85.26 provides, in pertinent part, that this heading includes “Radio apparatus . . . for the remote control of machines.” The common definition of “remote control” is a device or mechanism for controlling a piece of equipment from a distance, typically by means of radio or infrared signals it transmits. Pursuant to Note 5 to Section XVI, “[a] ‘machine’ means any machine . . . equipment, apparatus or appliance cited in the headings of Chapter 84 or 85.” Garage door openers, which include the electromechanical devices that actually raise and lower a garage door, are classified in Chapter 84, HTSUS. See NY F81926, dated February 7, 2000 (CBP classified a garage door opener under heading 8428, HTSUS. The article was comprised of an electromechanical device that consisted of an electric motor and aluminum rails containing a screw drive, a lighting control system, and hand-held remote control transmitter—all the components were imported packaged together and considered a functional unit per Note 4 to Section XVI).
Gentex claims that the Homelink Module does not have any radio remote control functionality, because it is only sending an RF signal. However, this assertion is incorrect because the Homelink Module does indeed send a radio signal (an RF signal is a “radio frequency” signal) and that signal, if it is the proper one for the particular garage door opener it is supposed to work with, triggers the garage door to open, close, etc. Thus, the Homelink Module functions as a remote control because it utilizes radio signals to remotely control a machine that opens and closes a garage door. And because the garage door opener is a machine that is classifiable under Chapter 84, the Homelink Module is the type of radio apparatus described in EN (12) 85.26. Therefore, the Homelink Module is classifiable under heading 8526, HTSUS.
Furthermore, CBP has consistently classified similar devices that use radio frequencies to remotely control machines under heading 8526. In HQ 957143, dated February 13, 1995, the article at issue was a remote keyless entry for an automobile. CBP, citing EN 85.26, determined that because the article used radio waves to remotely perform several functions—such as locking/unlocking a car door, turning on/off a car’s lights, and opening the rear trunk—the article was a radio apparatus for the remote control of machines and thusly classified in heading 8526, HTSUS. In NY K87346, dated July 1, 2004, CBP classified a device which used radio frequencies to remotely turn plugged in devices on and off under heading 8526, HTSUS. And in NY N057476, dated April 28, 2009, CBP classified a wireless radio remote control system for use with audio and video equipment under heading 8526, HTSUS, because the device used radio waves to remotely control various functions of audio and video devices such as volume. In these previous rulings the common functional thread between these devices was that they all controlled various functions of another device remotely using radio frequencies. The Homelink Module performs the same type of function as the devices in these previous rulings.
Therefore, the Homelink Module is classified under the specific subheading of 8526.92.0000, HTSUS, as “[r]adar apparatus, radio navigational aid apparatus and radio remote control apparatus: [o]ther: [r]adio remote control apparatus.”
HOLDING:
Pursuant to GRI 1, the Homelink Module is classifiable under subheading 8526.92.0000, HTSUS, as “[r]adar apparatus, radio navigational aid apparatus and radio remote control apparatus: [o]ther: [r]adio remote control apparatus.” The general, column one, rate of duty is 4.9% ad valorem.
The Protest should be DENIED. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website located at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division