OT:RR:CTF:CPMM:LMH
Heather Litman
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
707 Wilshire Blvd. STE 4150
Los Angeles, CA 90017
RE: Ruling request; Classification of Stashback and Stowaway Smartphone Cases
Dear Heather Litman,
This is in response to your correspondence dated December 21, 2017 requesting a ruling on behalf of Incipio Technologies, Inc. (“Incipio”), pursuant to 19 C.F.R. §177.2. At your request, a conference call was held on March 16, 2018 with counsel for Incipio to discuss the tariff classification of the smartphone cases. We have also reviewed your Supplemental Submission dated May 11, 2018. Your samples will be returned to you.
FACTS:
Requestor describes the “Stashback” smartphone case as follows:
Incipio’s “Stashback” smartphone cover is fabricated from molded plastic. The cover is designed and fabricated to fit snuggly around an iPhone X. The cover encases the entirety of the smartphone back and wraps around the edge of the smartphone screen. The bottom-back portion of the “Stashback” cover features a hinge. When the bottom of the cover is lifted backwards, a user may slide up to three small, flat items, such as a driver’s license or credit card, into the cover behind the phone. Most importantly, the “Stashback is designed so that all features of the smartphone remain fully functional while the smartphone is within the cover.
Requestor describes the “Stowaway” smartphone case as follows:
Incipio’s “Stowaway” smartphone cover is likewise fabricated from molded plastic. Similar to the “Stashback,” the “Stowaway” cover is designed to fit snuggly around an iPhone X smartphone by covering the entire back and wrapping around the edge of the smartphone screen. The “Stowaway” features a kickstand that, when opened, allows the user to prop up the smartphone on any flat surface. When the kickstand is lifted, a user may slide up to three small, flat items, such as a driver’s license, into the cover behind the phone. Again, the “Stowaway” is designed so that all features of the smartphone remain fully functional while the smartphone is within the cover.
ISSUE:
Whether the smartphone cases are classified as other articles of plastic of heading 3926, HTSUS (Harmonized Tariff Schedule of the United States), or as other containers of heading 4202, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other
***
4202 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:
Articles of a kind normally carried in the pocket or in the handbag:
4202.39 Other:
4202.39.90 Other
Note 1 to Chapter 39, HTSUS, states:
Throughout the tariff schedule the expression "plastics" means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.
Throughout the tariff schedule, any reference to "plastics" also includes vulcanized fiber. The expression, however, does not apply to materials regarded as textile materials of section XI.
Note 2(m) to Chapter 39, HTSUS, states:
This chapter does not cover “Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202.
Additional U.S. Note 1 to Chapter 39, HTSUS, states:
For the purposes of this chapter, the term "elastomeric" means a plastics material which after cross-linking can be stretched at 20°C to at least three times its original length and that, after having been stretched to twice its original length and the stress removed, returns within five minutes to less than 150 percent of its original length. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note.
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, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 39.26 states, in relevant part, that:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include: … (10) Tool boxes or cases, not specially shaped or internally fitted to contain particular tools with or without their accessories (see the Explanatory Note to heading 42.02).
EN 42.02 states, in relevant part, that:
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.
Subheading Explanatory Notes … Subheadings 4202.31, 4202.32, and 4202.39 state:
These subheadings cover articles of a kind normally carried in the pocket or in the handbag and include spectacle cases, note-cases (bill-folds), wallets, purses, key-cases, cigarette-cases, cigar-cases, pipe-cases and tobacco-pouches.
Requestor asserts that via GRI 1, the items are classifiable under heading 3926, HTSUS, because they are not listed in heading 4202, HTSUS, and cannot be considered “similar containers.” Requestor argues that just like the protective cases in Otter Prods., LLC v. United States, 70 F. Supp. 3d 1281 (CIT 2015), aff’d, 834 F.3d 1369 (Fed. Cir. 2016), the Stowaway and Stashback cases allow full functionality of the electronic device enclosed. Requestor argues that notwithstanding the hinged back, the merchandise is substantially similar to that in Otter Prods. in that the primary purpose of the cases is “to hold and protect smartphones while allowing for full use of the devices.”
In Otter Prods., see supra, the Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“CAFC”) classified two styles of durable and protective cases designed for certain types of cell phones in subheading 3926.90.99, HTSUS. The Commuter series were plastic cases with a smooth exterior that did not cover or enclose the screen of the device. The Defender series were plastic cases with a clear protective plastic membrane, a high-impact polycarbonate shell, a plastic belt clip holster, and a durable outer silicon cover that did not cover or enclose the screen of the device. The CIT and CAFC observed that none of the eo nomine articles listed in heading 4202, HTSUS, included cell phone cases and noted that a semicolon divided heading 4202, HTSUS, into two lists of exemplars. The Courts in Otter Prods. found that the molded plastic smart phone cases were not listed eo nomine in heading 4202 and that the merchandise could not be considered similar containers to those in the first part of the heading because they only met one of the four characteristics of those containers. The Court noted that the cases did not organize or store because they only held one item which remained useable while in the case, that only those cases with a clip could be said to carry, and that the one characteristic shared with the eo nomine containers in the heading was to protect.
In H284146, dated June 20, 2017, we addressed the classification of several smartphone cases, one of which fell under heading 4202. In this case, the Stowaway and Stashback smartphone cases do not have a pocket with a protective door. Instead, the back of the case can be opened to reveal the smartphone underneath in the case of the Stashback and the bottom of the case can be bent backwards to reveal the bottom and back of the smartphone in the case of the Stowaway. Although a consumer may be able to place cards next to the smartphone within the case, this does not constitute a pocket with a protective door meant to organize and store cards. Because of the lack of distinct card slots with protective door, these cases are distinguishable from those in H284146. The instant cases are structurally similar to those in Otter Prods., the main difference being the ability to open or bend the case. Accordingly, the Stowaway and Stashback cases are not classifiable in heading 4202, HTSUS consistent with the court decisions in Otter Prods. As in Otter Prods., pursuant to GRIs 1 and 6, the Stowaway and Stashback cases are made of plastics and are prima facie classifiable in heading 3926, HTSUS, specifically in subheading 3926.90.99, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject smartphone cases are classified in heading 3926, HTSUS. They are specifically classified under subheading 3926.90.9996, HTSUSA (Harmonized Tariff Schedule of the United States Annotated), which provides for, “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other.” The 2018 column one general rate of duty is 5.3% ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
Sincerely,
Allyson Mattanah, Chief
Chemicals, Petroleum, Metals, and Miscellaneous Articles Branch