CLA-2: OT:RR:CTF:TCM H076742 TNA
Mr. Jimmy Ting
Great World Customs Service
218 Littlefield Avenue
South San Francisco, CA 94080
RE: Reconsideration of NY N067876; Classification of Wikireader Device, Model C
Dear Mr. Ting:
This letter is in response to your request for reconsideration, on behalf of your client, OpenMoko, Inc. (“OpenMoko”), of New York Ruling Letter (“NY”) N067876, dated August 7, 2009, which classified the Wikireader, Model C, under subheading 8543.70.96, HTSUS, as “electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: other: other: other: other.” We have reviewed NY N067876 and found it to be correct. For the reasons set forth below, we hereby affirm NY N067876.
FACTS:
The merchandise at issue is the Wikireader, an electronic device that is modeled after Wikipedia, the online encyclopedia. Three different models of the Wikireader were classified in NY N067876, but only one model, Model C, is at issue in this reconsideration.
Model C will be imported with a version of Wikipedia installed on it. It will also be imported with an installed micro SD memory card containing either 4 or 8 gigabytes. Model C incorporates a printed circuit board assembly, a 3.4 inch, 240 x 208 1-bit passive LCD with touch screen, an ARM base 32 bit CPU, and other electrical components. It contains a touch screen and a virtual keyboard that allows the user to input search terms. It also contains two other functions: the “History” feature allows the user to see a list of past word searches, and the “Random” feature jumps to a random topic from the Wikipedia database.
NY N067876 classified Model C under subheading 8543.70.96, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: other: other.”
ISSUE:
Whether the Wikireader Model C is classified in subheading 8543.70.92, HTSUS, as an electrical machine with translation or dictionary functions, or in subheading 8543.70.96, HTSUS, as an “other” electrical machine or apparatus having individual functions not specified or included elsewhere?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). 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, HTSUS, states: For legal purposes, the 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 purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The headings at issue are as follows:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.70 Other machines and apparatus:
Other:
Other:
8543.70.92 Electrical machines with translation or dictionary functions; flat panel displays other than for articles of heading 8528, except for subheadings 8528.51 or 8528.61
8543.70.96 Other
8543.70.96 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 8543, states, in pertinent part, that:
This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90.
The electrical appliances and apparatus of this heading must have individual functions.
At issue here are different subheadings of heading 8543, HTSUS. To determine the correct subheading under which Model C is to be classified, we refer to GRI 6, HTSUS, which directs application of GRIs 1-5 at the subheading level. In your letter dated August 27, 2009, you claim that Model C is properly classified under subheading 8543.70.92, HTSUS, which provides for electrical machines with translation or dictionary functions. You reason that the Wikireader is an electronic version of Wikipedia, which is modeled after the interface of an electronic dictionary. In addition, you note that the process by which a user obtains information from the Wikireader is comparable to the way in which information from an online dictionary is retrieved.
Neither the relevant headings of the HTSUS nor the relevant ENs define the term “dictionary,” however, so CBP is permitted to consult dictionaries and other lexicographic materials to determine its meaning. See, e.g., Lonza v. United States, 46 F.3d. 1098; 1995 U.S. App. LEXIS 1821; 16 Int’l Trade Rep (BNA) 2551.
Merriam-Webster’s online dictionary, to which you cite, defines “dictionary” as “a reference source in print or electronic form containing words usually alphabetically arranged along with information about their forms, pronunciations, functions, etymologies, meanings, and syntactical and idiomatic uses.” The Oxford English Dictionary defines “dictionary” as “a book dealing with the individual words of a language (or certain specified classes of them), so as to set
forth their orthography, pronunciation, signification, and use, their synonyms, derivation, and history, or at least some of these facts: for convenience of reference, the words are arranged in some stated order, now, in most languages, alphabetical.” Webster’s Dictionary defines “dictionary” as “a book of alphabetical listed words in a language, with definitions, etymologies, pronunciations, and other information; lexicon.”
In the present case, entering a search term into Wikipedia, even a term that searches for a word’s dictionary meaning, yields an article that reveals not only the word’s meaning but also includes a significant amount of other information. A search of the word “dictionary,” for example, defines the term but also describes the use of the earliest dictionaries, distinguishes between dictionaries, glossaries, and pronunciation guides, among other things. As such, Wikipedia, and by extension Model C, is more akin to an encyclopedia than a regular dictionary. Dictionaries, with their focus on orthography, pronunciation, etymologies, derivation, and syntactical and idiomatic uses, are linguistic references. By contrast, Model C focuses on providing more general information about the entered search term.
The fact that Wikipedia is known as “the free encyclopedia” confirms the program’s focus on providing general information about a search term, rather than just its linguistic properties. Furthermore, searching for the term “dictionary” in Wikipedia also provides the user with a link to “look up ‘dictionary’ in WIktionary, the free dictionary.” A separate dictionary program would not be necessary of Wikipedia were in fact a dictionary.
In addition, similar electronic devices that CBP has classified under subheading 8543.70.92, HTSUS, have contained standard dictionaries, such as a version of Random House Webster’s Pocket American Dictionary. See, e.g., HQ 964779. As a result, Model C cannot be classified as a “dictionary.” Thus, at GRI 6, the Wikireader Model C is properly classifiable under subheading 8543.70.96, HTSUS, as “electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: other: other: other: other.”
Lastly, you argue that Model C should fall within subheading 9902.85.43, HTSUS, a provision that encompasses “educational devices (provided for in subheading 8543.70.96).” An encyclopedia, from which users can obtain a myriad of information, is an educational device. As a result, Model C is eligible for duty treatment of 1.6% ad valorem under subheading 9902.85.43, HTSUS.
HOLDING:
Under the authority of GRI 1, the Wikireader Model C is provided for in heading 8543, HTSUS. Under the authority of GRI 6, it is classified in subheading 8543.70.96, HTSUS, which provides for “electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: other: other: other: other.” As such, the duty rate is 2.6% ad valorem.
Because the subject merchandise falls within subheading 9902.85.43, HTSUS, it will receive duty treatment of 1.6% ad valorem on entries made on or before December 31, 2012.
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 on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N067876, dated August 7, 2009, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division