OT:RR:CTF:TCM H024054 HkP
George R. Tuttle, III, Esq.
Law Offices of George R. Tuttle
One Embarcadero Center, Suite 730
San Francisco, CA 94111-4044
RE: Modification of NY N018675; tariff classification of an HDMI cable
Dear Mr. Tuttle:
This is in response to your letter dated July 8, 2008, to U.S. Customs and Border Protection (“CBP”) on behalf of your client, Netflix, Inc., requesting reconsideration of New York Ruling Letter (“NY”) N018675, issued on November 13, 2007. At issue in that ruling was the correct classification of, among other things, a High Definition Multimedia Interface (“HDMI”) cable. CBP classified the HDMI cable in subheading 8544.42.90, HTSUS, as “other electric conductors for a voltage not exceeding 1,000 V: fitted with connectors: Other: Other.”
In reaching our decision we have taken into consideration arguments made in a supplemental submission dated May 11, 2009. For the reasons explained below, we hereby modify NY N018675.
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 9, 2010, in the Customs Bulletin, Volume 44, No. 24. No comments were received in response to this notice.
FACTS:
The HDMI cable was not described in NY N018675. However, a sample of an HDMI cable was submitted for our review.
HDMI cables are used with high-definition consumer electronics such as HDTVs, Blu-ray Disc players, multimedia PCs, gaming systems, and digital camcorders. The term “HDMI” is an acronym for the phrase “High Definition Multimedia Interface”. HDMI cables provide an uncompressed, all-digital interface between high definition electronics and personal computer products. HDMI signals can be sent over Cat5/6 networking cable, coaxial cable, and fiber-optic cable.
HDMI cables use twisted pair construction - they consist of one EDID/DDC (Extended Display Identification Channel/Display Data Channel) pair and four separate TMDS (Transition Minimized Differential Signaling – the technology that allows DVI and HDMI to send high-speed digital data) twisted pairs with a drain (signal ground) wire, with each TMDS pair covered with AL-Mylar foil shielding. In addition, the cables contain three single wires of CEC (Consumer Electronics Control) and hot plug detect conductor and one single wire for +5VDC (direct current voltage). The entire contents of the cables are shielded and encased in a protective PVC jacket. They are fitted at each end with HDMI 19-pin connectors.
ISSUE:
Whether HDMI cables are “of a kind used for telecommunications”, as required by subheading 8544.42.20, 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 are as follows:
8544 Insulated (Including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electrical conductors or fitted with connectors:
Other electrical conductors, for a voltage not exceeding 1,000 V:
8544.42 Fitted with connectors:
Other:
8544.42.2000 Of a kind used for telecommunications ….
8544.42.9000 Other ….
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not 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 these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The Explanatory Note (EN) to heading 8544, HTSUS, states in relevant part:
The heading covers, inter alia:
….
(3) Telecommunications wires and cables (including submarine cables and data transmission wires and cables) are generally made up of a pair, a quad or a cable core, the whole usually covered with a sheath. A pair or a quad consists of two or four insulated wires, respectively (each wire is made up of a single copper conductor insulated with a coloured material of plastics having a thickness not exceeding 0.5 mm), twisted together. A cable core consists of a single pair or a quad or multiple stranded pairs or quads.
Based on the statement of the Court of International Trade in AGFA Corporation v. United States, 491 F. Supp. 2d 1317 (2007), aff’d, 520 F. 3d. 1326 (Fed. Cir. 2008), that, “given that the Explanatory Notes are persuasive authority for the Court when they specifically include or exclude an item from a tariff heading,” (internal quotation marks omitted), you argue that the ENs are persuasive authority for classification of the HDMI cables under subheading 8544.42.40, HTSUS.
The ENs are indicative of the scope of a heading at the international level, that is, up to the first six digits of the heading. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). There is no dispute that the instant merchandise is described at GRI 1 by the terms of heading 8544 (8544.42), HTSUS, because it is an insulated cable fitted with connectors (and is for a voltage not exceeding 1,000 V). The issue in this case deals with text at the 8-digit level (cables “of a kind used for telecommunications” (8544.42.20) versus “other” cables (8544.42.90)), to which the ENs do not apply. Accordingly, AGFA is not helpful in this situation because there is no dispute that the cable is provided for in heading 8544, HTSUS.
You argue that, based on the common meaning of the term telecommunications, CBP’s classification of the HDMI cable under subheading 8544.42.90, HTSUS, as “other” than an electrical conductor of a kind used for telecommunications was incorrect because the cable is used for the transmission of digital signals, as are Ethernet and USB cables which CBP has previously found to be “for telecommunications” (see HQ H029719 (Nov. 2, 2008)).
When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)).
You have provided several versions of the common meaning of the term “telecommunications.” You cite, among other examples, the common definition of telecommunications given by the Computer Telephone & Electronics Glossary (www.csgnetwork.com) - “The science of sending signals representing voice, video, or data through telephone lines” - and by the Webster’s New World College Dictionary, 4th ed. (1999) - “communications by electronic or electric means, as through radio, telephone, telegraph, television, or computers.” In addition, we note that Newton’s Telecom Dictionary (23rd ed. 2009) defines the term “telecommunications” as: “1. The art and science of ‘communicating’ over a distance by telephone, telegraph and/or radio. The transmission, reception and the switching of signals, such as electrical or optical, by wire, fiber, or electromagnetic (i.e. through-the-air) means.”
Based on the common and commercial meaning of the term “telecommunications”, we find that HDMI cables at issue are “of a kind used for telecommunications.” They allow communication between various high definition electronic devices by electronic or electric means and, therefore, are classified in subheading 8544.42.20, HTSUS. This decision is consistent with HQ H029719 (Nov. 7, 2008), in which we classified a USB and an Ethernet cable in subheading 8544.42.20, HTSUS, because they allowed the transfer of data between a personal computer and various other electronic devices.
HOLDING:
By application of GRI 1, the HDMI cables are classified in heading 8544, HTSUS. They are specifically provided for in subheading 8544.42.20, HTSUS, which provides for: “Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors…: Other electric conductors, for a voltage not exceeding 1,000 V: Fitted with connectors: Other: Of a kind used for telecommunications.” The 2010 column one, general rate of duty is Free.
EFFECT ON OTHER RULINGS:
NY N018675, dated November 14, 2007, is hereby modified with respect to the classification of the HDMI cable.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division