CLA-2 OT: RR: CTF: TCM H122342 RM

Mr. Patrick Hennessey
Customs Compliance Specialist
Bensussen Deutsch & Associates
15525 Woodinville Redmond Road, NE
Woodinville, WA 98072

RE: Reconsideration of New York Ruling Letter N093315, dated May 4, 2010; Classification of an iPhone Universal Remote Case

Dear Mr. Hennessey:

This is in reference to New York Ruling Letter (NY) N093315, dated May 4, 2010, issued to you on behalf of Bensussen Deutsch & Associates (BDA), concerning the tariff classification of Power A's Universal Remote Case a molded plastic protective case for the Apple iPhone 3G/3GS with a built-in infrared transmitter. In that ruling, U.S. Customs and Border Protection (CBP) classified the merchandise under heading 4202, specifically in subheading 4202.99.90 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; : Other: Other: Other. For the reasons set forth below, we hereby affirm that ruling.

FACTS:

Power A's Universal Remote Case is a plastic case for the Apple iPhone 3G/3GS which has two interchangeable bottom parts; one contains a dock connector and an infrared (IR) transmitter (middle in the picture above), the other has an opening at the bottom to facilitate connection to a charger (bottom in the picture above). The IR transmitter works in conjunction with the Power A Universal Remote App, a software program which can be downloaded on the iPhone for free. Once installed, the application enables the user to program and control up to 20 IR-controlled devices through the iPhone.

ISSUE:

What is the proper tariff classification under the HTSUS of the Power A Universal Remote Case?

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 2011 HTSUS headings under consideration are the following:

4202. Trunks, suitcases, vanity cases, attache 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: Other: 4202.99 Other: 4202.99.90 Other

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8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: 70. Other machines and apparatus: Other: Other: 8543.70.96 Other

* * *

Note 7 to Chapter 85, HTSUS, provides that [h]eading 8537 does not include cordless infrared devices for the remote control of television receivers of other electrical equipment (heading 8543).

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 42.02 provides, in pertinent part:

This heading covers only the articles specifically named therein and similar containers. These containers may be rigid or with a rigid foundation, or soft and without foundation.

Subject to Notes 1 and 2 to this Chapter [not applicable here], 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. The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.).

EN 85.43 provides, in pertinent part:

This heading includes, inter alia:



(15) Cordless infrared devices for the remote control of televisions, video recorders, and other electrical equipment

GRI 2(b) instructs that [t]he classification of goods consisting od more than one material or substance shall be [determined] according to the principles of rule 3. GRI 3 instructs that if goods are prima facie classifiable under more than one heading, then classification shall be based upon the following:

a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set up for retail sale, those headings are to be regarded as equally specific in relation to those good.

b) Mixtures, composite goods consisting of different materials or made up of different components, and 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 a the material which gives them their essential character, insofar as this criterion is applicable.

In your request for reconsideration, you argue that the merchandise is classified under heading 8537, HTSUS, the provision for Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity other than switching apparatus of heading 8517, by application of GRI 3(b), because the universal remote control features are what impart the essential character. We note, however, that heading 8537, HTSUS, does not include cordless infrared devices for the remote control of electrical equipment. See Note 7 to Chapter 85.[1] When imported separately, infrared transmitters are classified in heading 8543, HTSUS, as Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [chapter 85]. See, e.g., NY H82675, dated July 18, 2001 (holding that an infrared transmitter used in a stereo headphone system was classified in heading 8543, HTSUS).

The two headings at issue headings 4202 and 8543 each refer to part only of the materials contained in the subject good, so they must be regarded as equally specific pursuant to GRI 3(a). The top piece which covers most of the iPhone, together with either of the interchangeable bottom pieces, comprise a fitted plastic case classifiable under the first part of heading 4202, HTSUS, which provides for: Trunks, suitcases, vanity cases, attach cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers. [Emphasis added.] See NY N120306, dated September 22, 2010; NY N108155, dated July 2, 2010; and NY N020782, dated January 10, 2008 (molded, silicone plastic cases for an iPhone or iPod classified under heading 4202, HTSUS). The case shares the essential characteristics and purpose as the exemplars listed in heading 4202, HTSUS, as established by the court in Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff'd. 69 F. 3d 495 (Fed. Cir. 1995); namely, it is used to organize, store, protect and carry an iPhone. Totes 865 F. Supp. at 872.[2] The IR transmitter, in turn, is classifiable in heading 8543, HTSUS, as an Electric machine or apparatus, having individual functions, not elsewhere specified or included in [chapter 85]. See EN 85.43 ([t]his heading includes cordless infrared devices for the remote control of televisions, video recorders, and other electrical equipment). See also NY H82675, dated July 18, 2001 (holding that an infrared transmitter used in a stereo headphone system is classified in heading 8543, HTSUS). We must therefore apply GRI 3(b), which instructs that goods should be classified as if they consisted of the material or component which gives them their essential character.

The essential character of an article is that which is indispensable to the structure, core or condition of the article, i.e., what it is. Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int'l Trade 2005). EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int'l Trade 2006), aff'd 491 F.3d 1334 (Fed. Cir. 2007).

The instant merchandise consists of three parts which can be configured into two different cases, only one of which includes the IR transmitter. At all times, regardless of its configuration, the molded plastic shell stores, protects, and facilitates the transportation of the iPhone. In contrast, the transmitter is not functional as imported the user must download an iPhone application before it can be used to control other IR devices. Therefore, as imported, the essential character of the Universal Remote Case is the molded plastic shell. As such, the case is classified under heading 4202, HTSUS. See also Headquarters Ruling Letter (HQ) 087057, dated December 21, 1990; HQ 089901, dated April 2, 1992; HQ 955261, dated April 14, 1994; HQ 968051, dated June 9, 2006; and HQ H026900, dated April 14, 2010.

HOLDING:

By application of GRI 3(b), Power A's Universal Remote Case is classified under heading 4202, specifically in 4202.99.90, HTSUS, as Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers: Other: Other: Other. The 2011 column one, general rate of duty is 20% ad valorem.

Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUSA (annotated) and the accompanying duty rates are provided on the U.S. International Trade Commission's web page, available at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY N093315, dated March 4, 2010, is hereby AFFIRMED.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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[1] We acknowledge that in Headquarters Ruling Letter 952302 (November 2, 1992), NY L84291 (May 9, 2005), NY G84246 (December 20, 2000), NY A83103 (May 28, 1996), CBP classified infrared remote controllers under heading 8537, HTSUS. Please note, however, that as a result of the amendments to the HS in 2007, cordless infrared devices for the remote control of electrical equipment are now classified under heading 8543, HTSUS. See Note 7 to Chapter 85.

[2] In classifying goods under the residual provision of "similar containers" of heading 4202, HTSUS, the Court of International Trade has stated as follows: As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms. Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff'd. 69 F. 3d 495 (Fed. Cir. 1995).