OT:RR:CTF:CPM H284146 APP
Mr. Sunil K. Malhotra
Senior Vice President of Worldwide Operations
Pelican Products, Inc.
23215 Early Avenue
Torrance, CA 90505
RE: Request for a ruling; Classification of various cases for cell phones and tablets
Dear Mr. Malhotra:
This is in response to your letter dated January 11, 2017, which was filed on behalf of Pelican Products, Inc. (“requestor”). You request a ruling concerning the classification of various cell phone and tablet cases under the Harmonized Tariff Schedule of the United States (“HTSUS”). At your request, a conference call was held on June 2, 2017, with representatives of Pelican Products, Inc. to discuss the tariff classification of the cases. The received samples will be returned to you.
FACTS:
Requestor describes the instant cases as follows:
The Protector Series (Part Number C02000-I63A-BLK-03)[,] Adventurer Series (Part Number C01100-I63A-CLE-03), Voyager Series (Part Number C18030-S701-WHT (phone) and Part Number C27120-001A-BKLG (tablet)), Marine Series (Part Number C02040-I63A-BLK-03), and Vault Series (Part Number C23050-300A-GYCL-3 (phone) and Part Number C28120-001A-BKLG (tablet)) are representative of the types of phone and tablet cases Pelican manufactures.
The Protector Series is a one piece, dual layer structural design constructed of impact absorbing materials – elastomer inside a rigid polycarbonate shell.
The Adventurer Series is a one piece, dual layer structural design constructed of polymer and impact-dispersing HPX (High Performance Composite) technology with a rigid outer shell.
The Voyager Series is a four-piece structural design consisting of an impact absorbing elastomer inside a rigid polycarbonate shell, a hard cover screen protector, a rubber capped dust protector and a holster with a swiveling belt clip and kickstand.
The Marine Series is a two piece, five-layer structural design constructed of impact absorbing and waterproofing materials – elastomer inside a rigid polymer shell.
The Vault Series is a one piece, four-layer structural design constructed of impact absorbing materials – elastomer inside a rigid polymer shell. The series also includes a protective door that protects the phone screen when closed. Also, a wallet inside the protective door houses two interior card-slots for credit cards or ID.
All five described series of Pelican phone and tablet cases serve to protect the item they are designed to hold snuggly and tightly. These cases require a degree of effort to put on and to take off. They are designed to stay on the phone or tablet in a semi-permanent manner.
All five described series of Pelican phone and tablet cases allow for full use of the phone or tablet they are made to hold while in the case.
The Vault series cases for cell phone and tablet are the only cases with a protective door among the cases at issue here. Requestor’s website at http://www.pelican.com/us/en/product/mobile-phone-tablet-cases/vault/iphone-7/C23050/ describes the Vault series for cell phone as follows:
Pelican™ Vault keeps your necessities close at hand. No more fumbling around to find your essentials. Carry your credit card, ID and phone all inside this durable folio case made of polymer plastics and TPR rubbers, making rips and tears nearly obsolete …. WALLET INSIDE - The protective door houses two interior card-slots, perfect for credit cards or ID.
Below are pictures of the samples that requestor provided:
Adventurer Vault (phone) Vault (tablet)
Voyager (phone) Voyager (tablet) Marine
Here is a picture of the Vault series cell phone case with a credit card from requestor’s website at http://www.pelican.com/us/en/product/mobile-phone-tablet-cases/vault/iphone-7/C23050/:
No sample was received for the Protector series. Below is a picture from requestor’s website at http://www.pelican.com/us/en/product/mobile-phone-tablet-cases/protector/iphone-6---6s/C02000/:
Protector
ISSUE:
Whether the instant protective cases for cell phones and tablets are classifiable as containers of heading 4202, HTSUS or as articles of plastics under heading 3926, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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 may then be applied.
GRI 6 states, in pertinent part, that:
[T]he classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purpose of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The HTSUS provisions at issue 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:
. . .
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:
Articles of a kind normally carried in the pocket or in the handbag:
4202.39 Other:
4202.39.90 Other:
Note 1 to Chapter 39, HTSUS states:
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.
Throughout the tariff schedule, any reference to “plastics” also includes vulcanized fiber. The expression, however, does not apply to materials regarded as textile materials of section XI.
Note 2(m) to Chapter 39, HTSUS states that this chapter does not cover “Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202.”
Additional U.S. Note 1 to Chapter 39, HTSUS states:
For the purposes of this chapter, the term “elastomeric” means a plastics material which after cross-linking can be stretched at 20°C to at least three times its original length and that, after having been stretched to twice its original length and the stress removed, returns within five minutes to less than 150 percent of its original length. Elastomeric plastics may also contain fillers, extenders, pigments or rubber-processing chemicals, whether or not such plastics material, after the addition of such fillers, extenders, pigments or chemicals, can meet the tests specified in the first part of this note.
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 U.S. Customs and Border Protection’s (“CBP”) practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 39.26 states, in relevant part, that:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include: … (10) Tool boxes or cases, not specially shaped or internally fitted to contain particular tools with or without their accessories (see the Explanatory Note to heading 42.02).
EN 42.02 states, in relevant part, that:
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 2 and 3 to this Chapter, 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.). The term “leather” includes chamois (including combination chamois) leather, patent leather, patent laminated leather and metallised leather (see Note 1 to this Chapter). The expression “similar containers” in this second part includes note cases, writing cases, pen cases, ticket cases, needle cases, key cases, cigar cases, pipe cases, tool and jewellery rolls, shoe cases, brush cases, etc….
The heading does not cover: … (c) Articles which, although they may have the character of containers, are not similar to those enumerated in the heading, for example, book covers and reading jackets, file covers, document jackets, blotting pads, photo frames, sweetmeat boxes, tobacco jars, ashtrays, flasks made of ceramics, glass, etc., and which are wholly or mainly covered with leather, sheeting of plastics, etc. Such articles fall in heading 42.05 if made of (or covered with) leather or composition leather, and in other Chapters if made of (or covered with) other materials … (f) Tool boxes or cases, not specially shaped or internally fitted to contain particular tools with or without their accessories (generally, heading 39.26 or 73.26) ….
Subheading Explanatory Notes … Subheadings 4202.31, 4202.32 and 4202.39
These subheadings cover articles of a kind normally carried in the pocket or in the handbag and include spectacle cases, note cases (bill folds), wallets, purses, key cases, cigarette cases, cigar cases, pipe cases and tobacco pouches.
Requestor asserts that via GRI 1, the items are classifiable under heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS, and that they are not named in heading 4202, HTSUS and do not fall under the “similar containers” category. Requestor argues that just like the protective cases in Otter Prods., LLC v. United States, 70 F. Supp. 3d 1281 (CIT 2015), aff’d, 834 F.3d 1369 (Fed. Cir. 2016), the Pelican cases are additions or accessories that can be put on or taken off at the user’s liking. Requestor states that of the Pelican series presented, only the Vault series for cell phone have compartments inside the protective door that can hold ID or credit cards. Requestor claims that this functionality is not the primary purpose of the Vault series and that the primary purpose of all series presented is “to protect the electronic device they are intended for snuggly and tightly while still allowing the electronic device held to be fully functional.” Requestor argues that the various series presented have a protecting function and allow for the electronic device to be fully functional while inside the case and that none of them organize, store, or perform a carrying function.
In Otter Prods., see supra, the Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“CAFC”) classified two styles of durable and protective cases designed for certain types of cell phones in subheading 3926.90.99, HTSUS. The Commuter series were plastic cases with a smooth exterior that did not cover or enclose the screen of the device. The Defender series were plastic cases with a clear protective plastic membrane, a high-impact polycarbonate shell, a plastic belt clip holster, and a durable outer silicon cover that did not cover or enclose the screen of the device. The Commuter and Defender series cases did not have a protective door or slots for credit cards/IDs.
The CIT and CAFC observed that none of the eo nomine articles listed in heading 4202, HTSUS included cell phone cases. The CIT and CAFC noted that a semicolon divided heading 4202, HTSUS into two lists of exemplars. In order for the Commuter and Defender series to fall under the “similar containers” following the second list of exemplars after the semicolon, they had to be made of the listed materials, which was not the case. The courts determined that in order for the Commuter and Defender series cases to be “similar containers” to the exemplars listed before the semicolon, they had to possess the essential characteristics (organizing, storing, protecting and carrying) that united these exemplars. The CAFC clarified that there was no requirement that the merchandise meet all four characteristics to qualify as a “similar container” under heading 4202, HTSUS. However, if an item met only one of the four characteristics, it would not qualify. Although the Commuter and Defender series cases protected the device, they did not organize, store, or carry. The Commuter and Defender Series cases did not serve any organizational purpose because they could only hold one electronic device and not multiple items. The cases did not store because the devices remained fully functional and to store “implies setting something aside” for future use. Otter Prods., 834 F.3d at 1379-80. The cases did not carry anything for purposes of being classified in heading 4202, HTSUS. The belt clips of the Defender Series cases were removable or only used for brief periods when the user was in motion. Unlike the listed exemplars in the first half of heading 4202, HTSUS that hold items and do not permit use of the enclosed item, the protective phone cases were “specifically designed to hold and protect an electronic device while it remains 100% functional.” Id. at 1380.
Just like in Otter Prods., none of the eo nomine articles listed in heading 4202, HTSUS, include the instant Pelican cell phone cases. The Pelican cases do not fall under the “similar containers” of heading 4202, HTSUS after the semicolon because they are not of the materials specifically named in the second half of the heading. We will next determine whether the Pelican cell phone/tablet cases fall under the “similar containers” before the semicolon in heading 4202, HTSUS. Articles “covered by the first half of the heading may be of any material.” EN 42.02. The term “similar containers ” in the first part of heading 4202, HTSUS, “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.” This list is not exclusive. See Headquarters Ruling Letter (“HQ”) 951534, dated August 4, 1992 (noting that “by definition, exemplars [enumerated in the ENs] are not meant to create absolute restrictions as to what is or is not classifiable within a particular provision.”).
The seven Pelican cases are not similar to the first six articles (“[t]runks, suitcases, vanity cases, attache cases, briefcases, school satchels”) in the first half of heading 4202, HTSUS, because the Pelican cases are not large articles and are used to hold small items normally carried in the pocket or handbag. The question before us is whether the Pelican cell phone cases have characteristics in common with the remaining six articles (“spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters”) enumerated in the first half of heading 4202, HTSUS, meaning whether they have the capacity to organize, store, protect, and carry smaller items normally carried in the pocket or handbag. See Totes, Inc. v. United States, 18 CIT 919, 926, 865 F. Supp. 867, 874 (1994).
Similar to the cases in Otter Prods., the subject Pelican cases from the Adventurer series, Voyager series for cell phone and tablet, Marine series, and Protector series are plastic cases that contain a single item (a cell phone or a tablet) and do not cover or enclose the screen of the device. The Vault series model for tablet also contains a single item (the device), however, the case covers and encloses the screen of the tablet. While the subject Pelican cases from the Adventurer series, Voyager series, Marine series, Protector series, and Vault series (for tablet only) protect the devices, they do not organize, store, or carry within the meaning of heading 4202, HTSUS, because they can only hold one device and remain fully functional, which is “inconsistent with ‘storing.’” Otter Prods., 70 F. Supp. 3d at 1294. Accordingly, the subject Pelican cases from the Adventurer series, Voyager series, Marine series, Protector series, and Vault series (for tablet only) are not classifiable in heading 4202, HTSUS consistent with the court decisions in Otter Prods. As in Otter Prods., pursuant to GRIs 1 and 6, the instant Pelican cases from the Adventurer series, Voyager series, Marine series, Protector series, and Vault series (for tablet only) are made of plastics and are prima facie classifiable in heading 3926, HTSUS, specifically in subheading 3926.90.99, HTSUS.
It is our determination that the subject Pelican Vault series case for cell phone is a “similar container” to the last six exemplars (“spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters”) listed before the semicolon in heading 4202, HTSUS, because it is specially shaped or fitted to organize, store, protect and carry a cell phone and credit cards or IDs. Even if the primary purpose of the Pelican Vault series case for cell phone, as requestor suggests, is to protect the device, unlike the cases in Otter Prods., it also organizes, stores, and carries other items when they are not in use. The CAFC held that in the context of heading 4202, HTSUS, “organization implies multiple items placed together in a single container.” Otter Prods., 834 F.3d at 1379. The Pelican Vault series case for cell phone serves an organizational purpose because it can hold a cell phone and up to two credit cards or IDs in separate slots. It stores credit cards or IDs because they are not in use while in the Vault series case. The Pelican Vault series case satisfies the “carry” factor because the two interior slots for credit cards or IDs add a carrying capability to the electronic device, which it alone would not have.
Thus, the primary purpose of the subject Pelican Vault series case is not inconsistent with that of the last six exemplars in the first half of heading 4202, HTSUS. Even though the cell phone device is 100% functional while it is in the Pelican Vault series case, the credit cards or IDs in the slot are not in use, and this is what distinguishes the Pelican Vault series case for cell phone from the cases in Otter Prods. During our conference call on June 2, 2017, requestor agreed that the subject Pelican Vault series case for cell phone protects, organizes, carries, and stores, and as such it is classifiable as a “similar container” in the first half of heading 4202, HTSUS. Accordingly, the instant Pelican Vault series case for cell phone is classifiable as a specially shaped or fitted container in the first half of heading 4202, HTSUS and is excluded from heading 3926, HTSUS by virtue of Note 2(m) to Chapter 39, HTSUS.
Lastly, we will determine the appropriate subheading for the Pelican Vault series case for cell phone. According to the subheading ENs to 42.02, subheading 4202.39, HSTUS covers articles of a kind normally carried in the pocket or handbag such as “spectacle cases, note-cases (bill-folds), wallets, purses, and key-cases, cigarette-cases, cigar-cases, pipe-cases and tobacco-pouches.” This list is not exclusive. Articles of a kind normally carried in the pocket or handbag within the meaning of subheading 4202.39, HTSUS, are made to carry one specific article, may accommodate small accessories or parts, and are often form-fitted to the particular item to be carried. In HQ 965152, dated December 20, 2001, CBP classified a contact lens case of molded plastic that was not listed among the exemplars in the subheading ENs to 42.02 as a specially shaped or fitted container in the first part of heading 4202, HTSUS, specifically in subheading 4202.39.90, HTSUS. Similarly, the Vault series case for cell phone is fitted for both the cell phone and credit cards or IDs, and is carried in the pocket or handbag. Therefore, the instant plastic molded Vault series case for cell phone is classified in subheading 4202.39.90, HTSUS, as an article of a kind normally carried in the pocket or handbag of material other than leather, composition leather, sheeting of plastics, textile materials, vulcanized fiber or paperboard wholly or mainly covered with paper.
HOLDING:
By application of GRIs 1 and 6, the subject Pelican cases from the Adventurer series, Voyager series, Marine series, Protector series, and Vault series (for tablet only) are classified under heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2017 column one, general rate of duty is 5.3%.
By application of GRIs 1 and 6, the subject Pelican Vault series case for cell phone is classified under heading 4202, HTSUS, specifically under subheading 4202.39.90, 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; 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: Articles of a kind normally carried in the pocket or in the handbag: Other: Other.” The 2017 column one, general rate of duty is 20%.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division