OT:RR:CTF:EMAIN H315444 SKK
Center Director
Electronics Center of Excellence and Expertise
U.S. Customs and Border Protection
301 E. Ocean Blvd., Ste. 600
Long Beach, CA 90802
ATTN: Helene Mikes, Supervisory Import Specialist
RE: Request for Internal Advice; Classification of Wi-Fi enabled digital photo frames
Dear Center Director:
This letter is in response to your request for Internal Advice (IA), dated August 19, 2020,
made pursuant to § 177.11 of title 19 of the Code of Federal Regulations (19 CFR § 177.11). The IA request was initiated by Creedon Technologies USA, LLC (Creedon) on August 1, 2020, and concerns the tariff classification under the Harmonized Tariff System of the United States (HTSUS) of “Nixplay Smart Photo Frames” imported from China.
The subject merchandise was entered on September 15, 2019. On December 23, 2019, U.S. Customs and Border Protection (CBP) issued a CBP Form 29 to Creedon, referencing New York Ruling Letter (NY) N302467* as the basis for the rate advance. The subject merchandise was liquidated on January 3, 2020, under heading 8528, Harmonized Tariff Schedule of the United States (HTSUS), specifically subheading 8528.59.15, HTSUS, which provides for “[M]onitors and projectors, not incorporating television reception apparatus; reception apparatus for television, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus: Other monitors: Other: Color: With a flat panel screen: Incorporating video recording or reproducing apparatus.” On January 21, 2020, Creedon filed a timely protest of that decision, referenced protest number 2704-20-109522, seeking classification under subheading 8528.52.00, HTSUS, which provides for “[M]onitors and projectors, not incorporating television reception apparatus; reception apparatus for television, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus: Other monitors: Capable of directly connecting to and designed for use with an automatic data processing machine of heading 8471.” CBP denied the protest on July 1, 2020.
FACTS:
The merchandise at issue is described as the “Nixplay 10.1-inch Smart Photo Frame (Model W10F).” It is a Wi-Fi enabled digital photo frame that displays video in a slideshow view. The subject device incorporates a motion detector, infra-red receiver (for remote control), speakers and LCD display panel, and measures 7.36 x 10.55 x 1.22 inches and weighs 1.30 lbs. Its input voltage is 100-240V 0.3A and its output voltage is 5V 2.0A. In its condition as imported, it is packaged together for retail sale with a power adapter, remote control, wall-mount screw kit, and quick start guide. The device is operated by connecting it to a Wi-Fi network and then pairing the device to the user’s Nixplay account either via a mobile software application (app) or website. The subject frame requires Wi-Fi to receive photos, but has internal cache memory for offline photo viewing when there is no Wi-Fi available. See https://support.nixplay.com/hc/en-us/articles/360015748892-How-is-storage-being-used-on-the-Nixplay-Cloud-and-on-Nixplay-Frames-.
ISSUE:
Whether is the proper classification of the subject merchandise?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If 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. GRI 3(a) provides that “the heading which provides the most specific description shall be preferred to headings providing a more general description.” GRI 3(b) states, in pertinent part, that goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character. GRI 3(c) provides that when goods cannot be classified by reference to GRI 3(a) or 3(b), they are to be classified in the heading that occurs last in numerical order among the competing headings that equally merit consideration. Under GRI 6, the classification of goods in the subheadings of a heading is determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions at issue are as follows:
8528 Monitors and projectors, not incorporating television reception apparatus; reception apparatus for television, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus:
***
- Other monitors:
8528.52 -- Capable of directly connecting to and designed for use with an automatic data
processing machine of heading 84.71
8528.59 -- Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 85.28 provides, in pertinent part:
This heading includes:
Monitors and projectors, not incorporating television reception apparatus.
***
Monitors, projectors and television sets utilize different technologies, such as CRT (cathode-ray tube), LCD (liquid crystal display), DMD (digital micromirror device), OLED (organic light emitting diodes) and plasma, to display images.
Monitors and projectors may be capable of receiving a variety of signals from different sources. However, if they incorporate a television tuner they are considered to be reception apparatus for television.
(A) MONITORS CAPABLE OF DIRECTLY CONNECTING TO AND DESIGNED FOR USE WITH AN AUTOMATIC DATA PROCESSING MACHINE OF HEADING 84.71
This group includes monitors which are capable of accepting a signal from the central processing unit of an automatic data processing machine and provide a graphical presentation of the data processed.
These monitors are distinguishable from other types of monitors (see (B) below) and from television receivers.
The monitors of this group may be characterized by the following features:
(i) They usually display signals of graphics adaptors (monochrome or colour) which are integrated in the central processing unit of the automatic data processing machine;
(ii) They do not incorporate a channel selector or video tuner;
(iii) They are fitted with connectors characteristic of data processing systems (e.g., RS- 232C interface, DIN, D-SUB, VGA, DVI, HDMI or DP (display port) connectors);
(iv) The viewable image size of these monitors does not generally exceed 76 cm (30 inches);
(v) They have a display pitch size (usually smaller than 0.3 mm) suitable for close proximity viewing;
(vi) They may have an audio circuit and built-in speakers (generally, 2 watts or less in total);
(vii) They usually have control buttons situated in the front panel;
(viii) They usually cannot be operated by a remote control;
(ix) They may incorporate tilt, swivel and height adjusting mechanisms, glare-free surfaces, flicker-free display, and other ergonomic design characteristics to facilitate prolonged periods of viewing at close proximity to the monitor;
(x) They may utilize wireless communication protocol to display data from an automatic data processing machine of heading 84.71.
In its condition as imported, the subject frame is packaged together for retail sale with a power adapter, remote control, wall-mount screw kit, and quick start guide. As such, pursuant to GRI 3(b), the subject merchandise is considered a set for tariff classification purposes and its essential character is imparted by the digital photo frame.
The term “monitor” of heading 8528, HTSUS, have been defined by the courts as “a machine that receives data from an external source, and then processes and converts that data into physical output commands to display an image.” See Prysm, Inc. v. United States, No. 18-00151 (Ct. of Int’l Trade, December 26, 2019). As the subject frames receive data from an external source for display, classification as a “monitor” under heading 8528, HTSUS, is proper. The determinative issue arises at the 6-digit HTSUS level; specifically, whether the subject articles are classified under subheading 8528.52, HTSUS, which provides for “other monitors capable of directly connecting to and designed for use with an automatic data processing machine of heading 84.71,” or under residual subheading 8528.59, HTSUS.
Although EN (A)(x) to 85.28 provides that monitors may connect to an ADP machine via a wireless protocol, the legal text of subheading 828.52, HTSUS, specifically requires that such connection be “direct.” In this regard, Creedon argues that the subject frames are properly classified under subheading 8528.52, HTSUS, as they utilize Wi-Fi to connect to Nixplay servers (ADP machine). Creedon further claims that the subject frames cannot function on their own and have no USB, SD card, HDMI, VGA, or other cabled input/output method; rather, the subject frames can only function while connected to Nixplay servers as the subject monitors display content sent directly from a remote server (ADP machine) and function only on commands from the remote server (ADP machine). In the instant case, the subject devices cannot connect directly to an ADP machine via Wi-Fi and must first connect through multiple apparatus of heading 8517, HTSUS (i.e., a router (85.17) and Ethernet switch (85.17)). Accordingly, the subject frames are not classified under subheading 8528.52, HTSUS. This determination is consistent with NY N301638, dated November 28, 2018, in which CBP classified a digital art photo frame in subheading 8528.59, HTSUS, noting that the article was not capable of directly connecting to or designed for use with an ADP machine of heading 8471 and only capable of connecting to the manufacturer’s cloud server.
As the subject monitors can reproduce video from internal storage, classification is proper under subheading 8528.59.15, HTSUS, which provides for, in pertinent part, other monitors incorporating video recording or reproducing apparatus.
HOLDING:
By application of GRIs 1, 3(b), and 6, the “Nixplay 10.1-inch Smart Photo Frame (Model W10F)” is classified under subheading 8528.59.15, HTSUS, which provides for “[M]onitors and projectors, not incorporating television reception apparatus; reception apparatus for television, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus: Other monitors: Other: Color: With a flat panel screen: Incorporating video recording or reproducing apparatus.” The general, column one rate of duty is free.
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 on the U.S. International Trade Commission’s website at www.usitc.gov.
You are directed to mail this decision to the IA applicant no later than 60 days from the date of this letter. On that date the Office of Trade, Regulations and Rulings, will make the public version of the decision available to CBP personnel and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.
Sincerely,
for Craig T. Clark, Director Commercial and Trade Facilitation Division