CLA-2 OT:RR:CTF:TCM H058790 GC
Mr. Colon Ng
Import Compliance Manager
NEC Corporation of America
6535 North State Highway 161
Irving, Texas 75039
RE: Tariff classification of wall-mounted plastic enclosures for telecommunications equipment
Dear Mr. Ng:
This is in response to your electronic ruling request of January 28, 2009, in which you request U.S. Customs and Border Protection (CBP) to issue a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), for wall-mounted plastic enclosures for telecommunications equipment, marketed as the Thalassa IP66. Your ruling request was forwarded to this office from the National Commodity Specialist Division in New York, on April 9, 2009, for reply.
FACTS:
At issue is the Thalassa IP66 cabinet (style NEC SIP DECT AP200S/AP200I), which is composed of plastic reinforced by fine fibers of glass. It will be imported in sizes ranging from approximately 12 inches high by 8.5 inches wide by 6 inches deep to 41.5 inches high by 33.5 inches wide by 14 inches deep. The cabinet has an Ingress Protection (IP) rating of 66, which is used to specify the environmental protection the enclosure provides. The IP rating system was developed by the International Electrotechnical Commission, a non-profit, non-governmental international standards organization. An IP rating of 66 indicates that the cabinet provides complete protection of the contents contained within it from dust and other solid articles as well as protection from powerful jets of water from any direction.
You state that the subject cabinet is used to house and insulate telecommunications equipment from these environmental elements. The literature that you submitted on the cabinet indicates that it is designed to be mounted on a wall or on a pole. The cabinet is imported with seven polystyrene foam blocks, which will be placed around telecommunications equipment to be installed after importation of the subject cabinet. Such telecommunications equipment includes a “DECT Access Point” (DAP), which serves as a junction point for Ethernet connections.
ISSUE:
Whether the subject telecommunications cabinet is an article of plastic of heading 3926, HTSUS, a part of an apparatus for communication in a wired or wireless network of heading 8517, HTSUS, or other furniture of heading 9403, 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…
* * *
8517 Telephone sets, including telephones for cellular networks or 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 area network), other than transmission or reception apparatus heading 8443, 8525 or 8528; parts thereof:
8517.70.00 Parts…
* * *
9403 Other furniture and parts thereof:
9403.70 Furniture of plastics:
9403.70.80 Other…
Additional U.S. Rule of Interpretation 1(c) states that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory”.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Note 1 to Chapter 39, HTSUS, states, in pertinent part, that:
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.
EN 39.26 states, in pertinent part, that the “…heading covers articles, not elsewhere specified or included, of plastics… or of other materials of headings 39.01 to 39.14”. The plastic reinforced by fine fibers of glass, which comprises the subject cabinets, constitutes “plastics” of Chapter 39, HTSUS. Accordingly, the instant merchandise falls under heading 3926, HTSUS, as an other article of plastics, and will be classified there if it is not elsewhere provided for in the HTSUS.
In New York Ruling Letter (NY) F86307, dated May 23, 2000, CBP classified a cabinet equipped with specific telecommunications components as parts of telecommunications apparatus of heading 8517, HTSUS. The instant cabinet, however, is distinguishable from such items. The fact that the subject cabinet is imported without any internal components or features necessary to facilitate telecommunications connections indicates that the subject cabinet is not designed for sole or principal use with telecommunications apparatus of heading 8517, HTSUS. At importation, the subject cabinet is an empty plastic box. Similarly, there is no evidence that the instant cabinet is designed to be an integral constituent or component of such equipment, as indicated by the fact that subject cabinets are intended merely to house and insulate its contents. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997)(citing United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322 (1933) and United States v. Pompeo, 43 C.C.P.A. 9 (1955), and Additional U.S. Rule of Interpretation 1(c)). Rather, the subject cabinets will function independently to house telecommunications equipment, such as a DAP, protecting it from environmental elements like water and dust. These are not the functions of a part of a telecommunications apparatus of heading 8517, HTSUS.
Furthermore, Additional U.S. Rule of Interpretation 1(c) states that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory”. There is no evidence that the subject cabinet is suitable for use solely or principally with a particular article of heading 8517, HTSUS. Consequently, the subject merchandise does not fall under heading 8517, HTSUS.
It is your position that the subject cabinets are classifiable as other furniture of heading 9403, HTSUS. As support, you cite New Ruling Letter (NY) H84895, dated August 16, 2001, which concerned the tariff classification of the Mesa Sport Cabinet. The Mesa Sport Cabinet was described as an aluminum cabinet designed for storage of telecommunications equipment.
Note 2 to Chapter 94, HTSUS, reads as follows:
The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground. The following are, however, to be classified in the above-mentioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:
(a) Cupboards, bookcases, other shelved furniture and unit furniture;
(b) Seats and beds
The General EN to chapter 94, HTSUS, provides, in pertinent part, as follows:
For the purposes of this Chapter, the term “furniture” means:
Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices. . .
The following:
Cupboards, bookcases, other shelved furniture and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various objects or articles (books, crockery, kitchen utensils, glassware, linen, medicaments, toilet articles, radio or television receivers, ornaments, etc.) and separately presented elements of unit furniture…
Although you characterize the function of the cabinet subject to NY H84895 as similar to the function of the subject merchandise, the instant merchandise is designed to be mounted on the wall or on a pole, which was not the case with the Mesa Sport Cabinet subject to NY H84895. Thus, NY H84895 is distinguishable from this case.
Furthermore, in Headquarters Ruling Letter (HQ) 964503, dated August 14, 2001, which pertained to the classification of glass shelves, CBP discussed the interpretation of “other shelved furniture” in Note 2(a) to Chapter 94, HTSUS. We interpreted Note 2(a) to mean that articles are classifiable as “furniture” of heading 9403, HTSUS, only where they are similar to cupboards and bookcases in the sense that they are substantial articles having the essential characteristic of being used to equip a home, office, etc., and incorporate shelves in their construction. In HQ 964503, the shelving itself did not constitute furniture of heading 9403, HTSUS.
Here, the subject merchandise bears a similarity to a cupboard or bookcase in that it is designed to be mounted on the wall or on a pole. However, the subject cabinets do not feature shelving, which is necessary to fall under the scope of the phrase, “other shelved furniture…” of Note 2(a) to chapter 94. (Emphasis added). The polystyrene foam blocks imported with the subject cabinet do not constitute shelves as contemplated in Note 2(a). A DAP is installed after importation by surrounding and securing it with the foam blocks. Given that the items mentioned in the General EN (B)(i) to Chapter 94 (i.e. radio or television receivers) are placed on shelves for storage and easy access of the consumer, we do not find that the polystyrene foam blocks constitute “shelving”. Rather, the polystyrene foam blocks are incorporated into the subject merchandise in order to fully encapsulate electronic equipment, thereby protecting it from potentially disruptive environmental conditions.
Accordingly, we find that the subject cabinets are excluded from classification in heading 9403, HTSUS, by virtue of Note 2 to chapter 94. The subject cabinets are thus classified under heading 3926, HTSUS, as other articles of plastics.
HOLDING:
By application of GRI 1, the instant cabinets for telecommunications connections are classified under heading 3926, which provides for other articles of plastics. The subject merchandise is specifically provided for under subheading 3926.90.99, HTSUS, which provides for: “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other…” The column one, general rate of duty is 5.3 percent ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch