CLA-2 OT:RR:CTF:TCM H100677 GC
U.S. Customs and Border Protection
San Francisco Service Port
555 Battery Street
San Francisco, California 94111
RE: Tariff classification of external flashes for digital and film cameras;
Protest Number 2809-10-100095
Dear Port Director:
This letter is in reply to protest, and application for further review (AFR), number 2809-10-100095, dated March 3, 2010, filed on behalf of Canon USA, Inc. (Canon), against U.S. Customs and Border Protection’s (CBP) reclassification and subsequent liquidation of an entry of camera flashes imported for use with Canon digital and film cameras.
FACTS:
This protest pertains to one entry taking place on September 3, 2009, which covers the Canon Speedlite Model 580EX II (Speedlite). The instant Speedlite, which operates on two AA-size batteries, features a recycling time of approximately .1 to 6 seconds and a flash range of approximately 1.6 to 98.4 feet. It is compatible with a number of Canon’s cameras, including the EOS film and digital cameras, SLR cameras, and Powershot cameras.
The subject merchandise was entered under heading 9006, Harmonized Tariff Schedule of the United States (HTSUS), which provides for in pertinent part, “photographic flashlight apparatus”. At liquidation, dated January 4, 2010, the Speedlite was classified under heading 8543, HTSUS, which provides for, in pertinent part: “[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter”.
ISSUE:
Whether the subject Speedlite is classified under heading 8543, HTSUS, as electrical apparatus having individual functions, or under heading 9006, HTSUS as photographic flashlight apparatus?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on March 3, 2010, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest 2809-10-100095 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. Specifically, in accordance with Section 174.24(b), the decision against which the protest was filed involves questions of law or fact which had not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts (e.g., the classification of flashes which can be used with digital cameras or film cameras).
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 2009 HTSUS provisions under consideration 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:
8543.70.96 Other…
* * *
9006 Photographic (other than cinematographic) cameras; photographic flashlight apparatus and flashbulbs other than discharge lamps of heading 8539; parts and accessories thereof:
Photographic flashlight apparatus and flashbulbs:
9006.61.00 Discharge lamp (“electronic”) flashlight apparatus…
Note 1(m) to Section XVI, HTSUS, excludes “[a]rticles of Chapter 90” from classification in Section XVI. Accordingly, before considering heading 8543, HTSUS, it must first be determined whether the subject merchandise meets the terms of heading 9006, HTSUS.
The central issue herein is whether the tariff term "photographic flashlight apparatus" in heading 9006, HTSUS, is an eo nomine provision or a principal use provision. An eo nomine provision "describes a commodity by a specific name, usually one well known to commerce." See Ruth F. Sturm, Customs Law & Administration § 53.2 at 2 (Supp. 1995) (citing United States v. Bruckmann, 65 C.C.P.A. 90, C.A.D. 1211, 582 F.2d 622, 625 n.8 (1978)). The clear weight of the authorities on the subject is that an eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article.
Nootka Packing Co. v. United States, 22 C.C.P.A. 464, 470, T.D. 47464 (1935); see also Lynteq, Inc. v. United States, 976 F.2d 693, 697 (Fed. Cir. 1992) ("Tariff terms contained in the statutory language "are to be construed in accordance with their common and popular meaning, in the absence of contrary legislative intent.'") (citation omitted).
In viewing the term “photographic flashlight apparatus”, we note that there is no statutory language dictating that the apparatus be limited to film based cameras. As such, we are of the view that “photographic flashlight apparatus is an eo nomine provision.
The next issue is defining the scope of the tariff term "photographic flashlight apparatus." The General Rules of Interpretation of the HTSUS provide "classification shall be determined according to the terms of the headings and any relative section or chapter notes." See GRI 1. When a tariff term is not clearly defined by either the HTSUS or its legislative history, the meaning of the term is generally resolved by ascertaining its common and commercial meaning. See, e.g., W.Y. Moberly,Inc. v. United States, 924 F.2d 232, 235 (Fed. Cir. 1991). In ascertaining common meaning, the court may rely on its own understanding of the term used, and may consult dictionaries, scientific authorities, and other reliable sources of information. See, e.g., Brookside Veneers, Ltd. v. United States, 6 Fed. Cir. (T) 121, 125, 847 F.2d 786, 789 (1988).
In its discussion on the scope of the provision for “photographic flashlight apparatus and flashbulbs, EN 90.06 states in pertinent part, that:
This group covers photographic flashlight apparatus and flashbulbs which are used for professional or amateur photography…
These devices produce a very bright light for a very short duration (flash)…
Included here are:
Separate flashbulbs.
* * *
Flashcubes.
* * *
Battery flashlamps.
* * *
The instant Speedlite electrically synchs with the camera shutter in order to provide a short duration of light to the subject of the photograph. It is noteworthy that they function in the same manner and perform the same function regardless of the type of camera with which they are used. Moreover, we take notice of the fact that Canon is a well established manufacturer of camera and related accessories, and that the instant Speedlite is marketed and sold with the merchandise manufactured by Canon in environments that sell other camera equipment.
In light of the foregoing, we find that the Speedlite falls within the scope of photographic flashlight apparatus and flashbulbs provided for under heading 9006, HTSUS, and are prima facie classifiable under that provision. See Headquarters Ruling Letter H085975, dated March 16, 2010 (classifying Nikon camera flashes under heading 9006, HTSUS); see also New York Ruling Letter N027037, dated May 7, 2008 (classifying a camera support used with both digital cameras and photographic cameras under heading 9006, HTSUS, as a camera accessory). Accordingly, the subject merchandise is excluded from Section XVI, HTSUS, by virtue of Note 1(m). Thus, the instant Speedlite Model 580EX II is classified under heading 9006, HTSUS.
HOLDING:
By application of GRI 1 and Note 1(m) to Section XVI, HTSUS, the instant Canon Speedlite Model 580EX II is classified under heading 9006, HTSUS, and specifically provided for under 9006.61.00, HTSUS (2009), which provides for, in pertinent part: “…photographic flashlight apparatus and flashbulbs…: Photographic flashlight apparatus and flashbulbs: Discharge lamp (‘electronic’) flashlight apparatus…” The column one, general rate of duty at the time of entry was free.
The protest should be approved. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division