CLA-2 OT:RR:CTF:TCM H070632 PJG
Mr. Carl Sammartano
UTI, USA, Inc.
230-39 International Center Blvd.
Jamaica, NY 11413
Re: Cell Phone Battery Packs; Reconsideration of NY N062996
Dear Mr. Sammartano:
This letter concerns your request for reconsideration of New York Ruling Letter (“NY”) N062996, dated June 5, 2009, issued by U.S. Customs and Border Protection (“CBP”) to your client, Wireless Xcessories Group, Inc. At issue in NY N062996 was the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of lithium ion and nickel-metal hydride (“NiMH”) battery packs (“batteries”) used for cellular telephones. We have reviewed your request for reconsideration of NY N062996 as well as other information that you provided to us.
FACTS:
In NY N062996, the batteries were described as follows:
[t]he merchandise subject to this ruling is lithium ion and nickel metal hydride (NiMH) battery packs. They are rechargeable batteries that are utilized to power cellular telephones. These battery packs can be charged either by utilizing the alternating current from a wall outlet via a charger, from a car’s direct current outlet via a charger, or by plugging into a USB port of a computer.
In your request for reconsideration, you state that the batteries are “designed to fit a specific phone” and “are not removed from the phone to recharge” but rather “remain inside the phone” while charging.
In your request for reconsideration, you do not specify which classification heading you are requesting; however, based on the rulings that you cite and the subsequent changes in the HTSUS, it appears that you believe the batteries should be classified under subheading 8517.70.00, HTSUS, as “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: Parts.” Moreover, you state that the Additional U.S. Rules of Interpretation (“AUSRI”) 7 should be given consideration.
In NY N062996 the merchandise was classified under subheading 8507.80.8000, HTSUS, which provides for “Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof; Other storage batteries: Other.”
ISSUE:
Whether the cellular telephone batteries are classified in heading 8517, as parts of telephones, or 8507, HTSUS, as batteries.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (“GRIs”). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 provisions under consideration are as follows:
8507 Electric storage batteries, including separators therefor, whether or not
rectangular (including square); parts thereof:
* * *
8507.80 Other storage batteries:
* * *
8507.80.80 Other:
8507.80.80.10 Lithium-ion batteries
8507.80.80.20 Nickel-metal hydride batteries
8507.80.80.50 Other
* * * * * * * * * * *
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:
* * *
8517.70.00 Parts
Section XVI, Note 2(a) states that “[s]ubject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: . . . Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings”.
In addition, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”), while not binding law, are the “official interpretation” of the Harmonized System at the international level and “provide a commentary on the scope of each heading” of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989); see also, Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are “intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation”).
EN 85.07 indicates that “[e]lectric accumulators (storage batteries or secondary batteries) are characterised by the fact that the electrochemical action is reversible so that the accumulator may be recharged.” Moreover, EN 85.07 states that “[a]ccumulators are used for supplying current for a number of purposes” including “cellular telephones.”
EN 85.17 indicates that heading 8517, HTSUS excludes “[c]ells, batteries and accumulators (heading 85.06 or 85.07).”
In your request for reconsideration, you cite to HQ 965130, dated March 27, 2002, and HQ 966268, dated May 21, 2003. HQ 965130 classified “battery packs for use with mobile cellular phones” under subheading 8529.90.99, HTSUS. However, HQ 965130 was revoked by HQ 966268, which held that the battery packs were “essentially electric storage batteries” and therefore, should be classified under heading 8507, HTSUS.
In accordance with Section XVI, Note 2(a), if the batteries are classified in heading 8507, HTSUS, they cannot be classified in heading 8517, HTSUS, as parts. The subject merchandise are electric storage batteries, or “electric accumulators” as described by EN 85.07, used to power specific cellular telephones. Specifically, the subject merchandise consists of two types of storage batteries, some of which contain lithium ion and others which contain NiMH, that are used for powering cellular telephones. Based on Note 2(a) to Section XVI, the subject merchandise is not classifiable under heading 8517, HTSUS. See also EN 85.17. Therefore, the batteries are classified under heading 8507, HTSUS as electric storage batteries.
HOLDING:
By application of GRI 1 the batteries are classified under heading 8507,
HTSUS. Specifically, the batteries containing are classified under subheading 8507.80.80, HTSUS, which provides for: “Electric storage batteries, including separators therefor, whether or not rectangular (including square); parts thereof: Other storage batteries: Other.” The 2011 general, column one rate of duty is 3.4% ad valorem.
EFFECT ON OTHER RULINGS:
NY N062996, dated June 5, 2009 is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division