CLA-2 OT:RR:CTF:TCM H023819 HvB
Ms. Tamra S. Nelson
Import/Export Compliance Supervisor
Belkin International, Inc.
501 W. Walnut Street
Compton, California 90220
RE: Revocation of NY N008149; Classification of a TuneFM™ for iPod® Nano, TuneBase™ FM for iPod® Nano, and a TuneCast™ Mobile FM Transmitter
Dear Ms. Nelson:
This letter is in reference to New York Ruling Letter (“NY”) N008149, issued to you on April 9, 2007, concerning the tariff classification of a TuneFM, a TuneBase, and a TuneCast transmitter for iPods, MP-3 players, and computers. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the merchandise under heading 8517, Harmonized Tariff Schedule of the United States (“HTSUS”), as “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).” We have reviewed NY N008149 and found it to be in error. For the reasons set forth below, we hereby revoke NY N008149.
In NY N008149 we described the merchandise, in relevant part, as follows:
The TuneFM™ for iPod® nano is identified in your letter as Part # F8Z061-BLK. It wirelessly connects your iPod® to your car, home or portable stereo enabling the pre-recorded music to be heard through the car, home or portable stereo’s speakers. The TuneFM™ plugs into the dock connector of an iPod® nano. The user then tunes the stereo to a clear FM frequency and the pre-recorded music on the iPod is heard through the speakers.
The TuneBase™ FM for iPod® nano is identified in your letter as Part # F8Z063-BLK. It contains a built-in FM wireless transmitter that connects to your car stereo on multiple FM channels, from 88-1MHz to 107.9 MHz. The pre-recorded contents (music files) of a iPod® nano is transmitted through an FM channel and the TuneBase™ FM allows the user to chose the best available frequency for listening to the music files through a car’s stereo speakers. This wireless device features four single-touch programmable preset memory buttons, which enable the user to find the clearest frequencies and toggle among them for best performance/reception. This item sits in a swivel holder cradle with a flexible steel neck that is connected to a car power adapter. The flexibility of the steel neck enables the user to vary the positioning of the iPod® nano.
The TuneCast™ Mobile FM Transmitter is identified in your letter as Part # F8V367-APL. It enables the user to listen to the pre-recorded tunes (music files) from an iPod® mobile digital device through an FM stereo receiver. The TuneCast™ Mobile FM Transmitter wirelessly connects portable music players to a car or home stereo. It plugs into the headphone jack of an iPod® or any audio source, such as a PDA, MP3, CD or cassette player, or a personal or laptop computer. Once a clear FM frequency is tuned-in, the music coming from each of these devices can be heard through the car or home stereo’s speakers.
Since the issuance of NY N008149, it has come to our attention that these devices are not operating as closed communication devices. We understand that while the devices are not capable of transmitting signals to a large geographical area, they still use radio broadcasting frequencies to transmit data so that anyone in the vicinity may listen to those transmissions.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification and revocation was published on June 23, 2010, in the Customs Bulletin, Volume 44, No. 26, with respect to the FM transmitter, which CBP classified in NY N008149 and NY N005439, in which CBP classified an FM transmitter and a plastic car mount. As stated in the notice, CBP proposed to modify NY N005439 in Headquarters Ruling Letter (HQ) H007467. NY N008149 will be addressed separately in HQ H007467. NY N005439 is being revoked by this decision, HQ H023819. No comments were received with respect to the FM transmitter.
Whether the TuneFM™ for iPod® Nano, TuneBase™ FM for iPod® Nano, and a TuneCast™ Mobile FM Transmitter are classified in heading 8517, HTSUS, as an apparatus for communication in a wireless network, or in heading 8525, HTSUS, as a transmission apparatus for radio-broadcasting?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
8517 Telephone sets, including telephones for cellular networks or for 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 of heading 8443, 8525, 8527, or 8528; parts thereof:
Other apparatus for 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):
8525 Transmission apparatus for radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders:
8525.50 Transmission apparatus:
8525.50.70 For radiobroadcasting…
* * * *
The terms of heading 8517, HTSUS, are limited to transmission apparatus which are not classified in heading 8525, HTSUS. As such, if the merchandise is classified in heading 8525, HTSUS, it cannot be classified in heading 8517, HTSUS. As a result, heading 8525, HTSUS, must be considered before classification in heading 8517, HTSUS, is appropriate. The legal text of heading 8525, HTSUS, as further illustrated by EN 85.25, provides that the goods of heading 8525 must transmit radio-broadcasting signals through the ether without a line connection.
Applying these principles to the present case, all of the products at issue are apparatus that broadcast signals by means of electro-magnetic waves through the ether without any line connection. The products transmit a signal through recognized FM radio bands that any radio can receive, including car radios, portable radios, and permanent radio tuners that are in the broadcast area of the product. In other words, there is no limitation to accessing the transmission nor is there any way to limit access to the transmission. As a result, these devices cannot be excluded from heading 8525, HTSUS.
Insofar as the subject FM transmitters do not have the ability to receive an FM signal that is being broadcast through the ether, the proper subheading classification of these devices is 8525.50.7010, HTSUS, which provides for “Transmission apparatus for radio-broadcasting that do not incorporate a reception apparatus…: Transmission apparatus: For radiobroadcasting: Transmitters.”
By application of GRI 1, the TuneFM™ for iPod® nano; the TuneCast™ Mobile FM Transmitter; and a TuneCast™ Mobile FM Transmitter are classified in heading 8525, HTSUS. Specifically they are classified in subheading 8525.50.7010, HTSUS, which provides for “[t]ransmission apparatus for radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders: [t]ransmission apparatus: [f]or radiobroadcasting: [t]ransmitters,” The general column one rate of duty is 3% ad valorem.
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 World Wide Web, at http://www.usitc.gov.tata/hts/.
EFFECT ON OTHER RULINGS:
NY N008149, dated April 9, 2007, is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon
Director, Commercial and Trade Facilitation Division