CLA-2 RR:CR:GC 966268 GOB

Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004

RE: Revocation of HQ 965130; Battery Packs for Mobile Cellular Telephones

Dear Ms. Cumins:

This letter pertains to HQ 965130 dated March 27, 2002, issued with respect to Protest 2502-02-100012. You filed that protest on behalf of Sanyo Energy (USA) Corporation. We have reviewed the classification in HQ 965130 and have determined that it is incorrect. This ruling sets forth the correct classification. This ruling has no effect on the entries which were the subject of Protest 2502-02-100012.

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 revocation of HQ 965130, as described below, was published in the Customs Bulletin on April 16, 2003. Two comments were received in response to the notice. They are addressed in the LAW AND ANALYSIS section of this ruling.

FACTS: In HQ 965130, the battery packs were described as follows:

The articles at issue are battery packs (model #s F41000729 (Nokia), F41000712 (Nokia), and F41000934 (Qualcomm) that are specifically designed for use with mobile cellular telephones . . . The battery packs, while manufactured to be used solely with specific brands and models of mobile cellular telephone[s], have the following similar components: one or more rechargeable storage batteries, a protective device that can shut off the battery pack when it reaches extreme temperatures (either heat or cold), a printed circuit board assembly (“PCBA”) with functions that vary with the requirements needed and the model of phone, and a plastic housing that provides protection and housing for the components previously mentioned as well as serving as a significant portion of the back/body of the phone.

In HQ 965130, we classified the battery packs in subheading 8529.90.99, HTSUS, as: “Parts suitable for use solely or principally with the apparatus of headings 8525 to 8529: Other: Other: Other.” ISSUE:

Are the subject battery packs for mobile cellular telephones provided for in heading 8507, HTSUS, as electric storage batteries, or in heading 8529, HTSUS, as parts suitable for use solely or principally with the apparatus of headings 8525 to 8529?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

8507 Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof:

8507.80 Other:

8507.80.80 Other

* * * * * *

8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8529:

8529.90 Other:

Other:

8529.90.99 Other

Note 2 to Section XVI, HTSUS, provides in pertinent part as follows:

Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:

(a) Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;

(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431,8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate ...

(c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate, or failing that, in heading 8485 or 8548.

Two comments were received in response to the notice. As one of the commenters, your comment included the following points: the rulings cited in the proposal (and in this ruling, below) are clearly distinguishable; the HSC decision described below is in conflict with Note 2(b) to Section XVI, HTSUS, which requires classification in heading 8529, HTSUS; and there is a factual distinction between the battery packs of HQ 965130 and those of the HSC decision. A second commenter claims that the subject battery packs are properly classified in subheading 8529.90.99, HTSUS. The commenter states that it is premature to rely on the HSC action for guidance as to the proper classification.

We are not persuaded by these comments. Please see the analysis below.

In HQ 965130 we referred to a ruling from Revenue Canada (Nokia Products Ltd. v. Deputy Minister of National Revenue, Appeal No. AP-99-082 (July 26, 2000)) in which the Canadian International Trade Tribunal classified cellular telephone battery packs in heading 8529 of the Canadian Tariff. This issue, and the Revenue Canada position, were recently considered by the Harmonized System Committee (“HSC”). In HSC 30 in November 2002 (Annex H/26 to Doc. NCO655E2), the Harmonized System Committee, by a vote of 40 to 0 with two abstentions, decided that battery packs for cellular telephones were classified in heading 8507, as opposed to heading 8529, by application of GRI 1. It is our position that decisions of the HSC should be treated in the same manner as the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. T.D. 89-80 provides that EN’s and decisions in the Compendium of Classification Opinions “should receive considerable weight.” While this HSC decision may not yet be in the Compendium of Classification Opinions, it is a final decision of the HSC.

In HQ 953767 dated April 19, 1993, Customs classified a cellular telephone battery in subheading 8507.30.00, HTSUS.

In NY D83733 dated November 18, 1998, Customs classified a lithium-ion rechargeable battery for a cellular telephone in subheading 8507.80.80, HTSUS.

While we agree with you that these two rulings do not involve the exact same merchandise as that at issue here, we believe that they are very relevant with respect to the scope and applicability of heading 8507, HTSUS.

Subject to certain exceptions that are not relevant here, goods that are identifiable as parts of machines or apparatus of Chapter 84 or Chapter 85 are classifiable in accordance with Note 2 to Section XVI, HTSUS. See Nidec Corporation v. United States, 861 F. Supp. 136, aff’d 68 F. 3d 1333 (1995). Parts which are goods included in headings of Chapters 84 and 85 are in all cases to be classified in their respective headings. See Note 2(a) to Section XVI, HTSUS. Because we believe that Note 2(a) controls the classification of the subject battery packs, Note 2(b) is not applicable.

With respect to certain of the points raised in your comment, we note the following. Because we are classifying on the basis of Note 2(a) to Section XVI, HTSUS, we do not find that Note 2(b) is in conflict with this ruling, or with the HSC decision described above. Further, we do not believe that there are substantial differences between the goods at issue here and the goods at issue in the HSC decision described above.

We find that the subject goods are essentially electric storage batteries. Therefore, pursuant to Note 2(a) to Section XVI, HTSUS, we determine that the subject battery packs for mobile cellular telephones are provided for in heading 8507, HTSUS, and are classified in subheading 8507.80.80, HTSUS, as: “Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof: Other: Other.”

Our determination is consistent with the Harmonized System Committee decision described above. Our analysis of this matter leads us to conclude that the Harmonized System Committee’s conclusions are correct.

As indicated above, this ruling has no effect on the entries which were the subject of Protest 2502-02-100012, as Customs no longer has jurisdiction over those entries. See San Francisco Newspaper Printing Co. v. United States, 620 F. Supp. 738 (CIT 1985).

HOLDING:

The subject battery packs for mobile cellular telephones are provided for in heading 8507, HTSUS, and are classified in subheading 8507.80.80, HTSUS, as: “Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof: Other: Other.”

EFFECT ON OTHER RULINGS:

HQ 965130 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.


Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division