CLA-2 OT:RR:CTF:EMAIN H315264 PF
David Newman
Attorney at Law
45 Village Gate Way
Nyack, NY 10960
RE: Tariff classification of a Pet Collar with Health and Location Tracking
Dear Mr. Newman:
This is in reply to your request, on behalf of your client Whistle Labs Inc. (Whistle), for a prospective ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a pet collar with health and location tracker electronics, entitled the Whistle 05. Your request was forwarded by the National Commodity Specialist Division to this office for a response. In addition to your written submissions of October 29, 2020, November 5, 2020, and November 13, 2020, our decision takes into consideration a teleconference meeting and presentation held with your office on February 9, 2021 and supplemental submissions received on February 10, 2021 and April 5, 2021.
FACTS:
The subject merchandise, the Whistle 05, is a pet collar with health and location tracker electronics. The Whistle 05 consists of a GPS receiver, CAT M1 cellular radio, a Bluetooth® BLE radio, a Wi-Fi radio, and an accelerometer with an integrated pedometer. The Whistle 05’s GPS multi global navigation satellite system receiver determines position data and is used for locating and tracking a pet’s movements. The accelerometer acquires pet motion data, which is used to track the pet’s health and fitness.
The ability of the Whistle 05 to acquire raw data about a pet’s location and fitness is via the GPS and sensors. The data created by the sensors is transmitted by the Whistle 05 via Wi-Fi or through a user’s smartphone using Bluetooth® or through the cellular network if the pet is outside the Wi-Fi range safety zone. The Whistle 05 is also able to store the data received from the accelerometer. The Whistle 05 can be programmed to send text messages, push and email alerts to the user.
The Whistle 05 is used with the Whistle Application on a user’s smartphone. A user has the ability to open their smart device application and determine their pet’s activity levels, the type of activity, and the calories consumed. A user also has the ability to set boundary parameters for the pet and if the pet ventures outside that range, the user is notified. These boundary parameters are set and monitored by the use of Wi-Fi networks selected by the user. Once the pet is outside of its Wi-Fi boundary zone or connection to a Wi-Fi network is lost, the device turns on assisted GPS to track and locate the pet’s location.
The Whistle 05 is a one-piece electronic device integrated with a collar. At the time of importation, the Whistle 05 is packaged for retail sale with two rechargeable batteries, a USB charging cable, and a quick start guide. As noted, the Whistle 05 is activated and set up through the Whistle application. The Whistle 05 has the ability to track the location of an animal with GPS, provide detailed health and activity data with the accelerometer and pedometer, and relay the information to the smart device with its data transmission capabilities.
Images of the Whistle 05 in its condition as imported are shown below:
ISSUE:
Whether the Whistle 05 is classified in heading 4201, HTSUS, as saddlery or a harness for an animal, heading 8517, HTSUS, as other apparatus for the transmission or reception of voice, images or other data or in heading 8526, HTSUS, as radio navigational aid apparatus, or in heading 9031, HTSUS, as a measuring or checking instrument.
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 (AUSR). The GRIs and the AUSR are part of the HTSUS, and are 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 and, unless otherwise required, according to the remaining GRIs taken in order. 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. Rule 2(a) relates to incomplete or unfinished goods. Rule 2(b) relates to mixtures and combinations of materials or substances.
Rule 3 provides, in pertinent part, that
When, by application of Rule 2(b) or for any other reason, goods are prima facie, classifiable under two or more headings, classification shall be effected as follows:
[t]he heading which provides the most specific description shall be preferred to headings providing a more general description....
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character….
When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The HTSUS headings under consideration are as follows:
4201 Saddlery and harness for any animal (including traces, leads, knee pads, muzzles, saddle cloths, saddle bags, dog coats and the like), of any material
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
8526 Radar apparatus, radio navigational aid apparatus and radio remote control apparatus
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to GRI 3(b) provide, in pertinent part, that:
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
As an initial matter, the Whistle 05 is imported and packaged together for retail sale with two rechargeable batteries, a USB charging cable, and a quick start guide. As such, they are classified as a “set” pursuant to GRI 3(b). Consistent with the description of retail “sets’ provided in the EN to GRI 3(b), there is no dispute that the Whistle 05, batteries, and charging cable are classifiable in different headings, are “put up together” to enable a user to charge, wear and use the Whistle 05, and are offered for sale directly to purchasers without repacking. See EN (X) to GRI 3(b).
We find that the Whistle 05 imparts the set with its essential character inasmuch as it is the dominant component article by use and cost in relation to the other components. All of the functionality of the device works through the Whistle 05, while the remaining components supplement the operation of the device themselves. Consequently, in accord with GRI 3(b), the Whistle 05 set will be classified as if it consisted only of the Whistle 05.
The Whistle 05 is comprised of several electronic components that are prima facie classifiable in different headings. The pet collar is classified under heading 4201, HTSUS. The Wi-Fi, Bluetooth® and cellular radios are described by heading 8517, HTSUS, the GPS receiver is described by heading 8526, HTSUS, and heading 9031, HTSUS, describes the accelerometer. Accordingly, because the Whistle 05 is classifiable under two or more headings, classification shall be effected by application of GRI 3.
GRI 3(b) covers mixtures, composite goods, and goods put up in sets for retail sale. For purposes of this rule, Explanatory Note IX to GRI 3(b) provides that, “composite goods made up of different components shall be taken to mean not only those in which the component are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.” (Emphasis original). As such, the Whistle 05 is properly described as a composite good because it consists of several components of independent, individual function that are attached to each other to form an inseparable whole.
You assert that the Whistle 05 is classified in heading 8517, HTSUS, and that its data transmission functions via Wi-Fi, Bluetooth® and cellular radios, impart the essential character of the device. In support of your position, you maintain that the Whistle 05 is analogous to the devices in Headquarters Ruling (HQ) H279898, dated April 5, 2017 (Fitbit workout device) and HQ H265035, dated January 19, 2016 (Microsoft Band fitness tracker). The fitness trackers that CBP classified in heading 8517, HTSUS, are wearable personal fitness trackers/monitors designed to connect via Bluetooth® to the user’s smartphone or other devices and which are used to convey and/or control information collected either by the fitness tracker or the portable device to which they are connected. This information includes, but is not limited to: tracking heart rate (Fitbit, Microsoft Band), tracking time slept (Fitbit, Microsoft Band), displaying the phone number of incoming calls or text messages and calendar alerts (Fitbit, Microsoft Band), displaying email (Microsoft Band), accessing contacts on a smartphone (Fitbit) and music control (Fitbit, Microsoft Band).
A comparison between the subject Whistle 05 and the aforementioned fitness trackers/monitors reveals that the Whistle 05 lacks several of the electronic components, physical characteristics, and functionality featured in the Fitbit workout device and the Microsoft Band Fitness tracker. Specifically, unlike the Fitbit workout device and Microsoft Band fitness tracker in ruling letters HQ H279898 and H265035, respectively, the Whistle 05 lacks the interactive controls that would allow a wearer or user to view or manipulate electronic data on the device itself and actively interact with other devices in a network. While the Wi-Fi, Bluetooth® and cellular radios of the Whistle 05 serve to support the functionality of the device, as it allows for bi-directional transmission of activity data from the Whistle 05 to a smart phone, the wireless communication functions of the Whistle 05 are limited. The Whistle 05 is unable to receive, display or transmit phone calls, calendar updates, nor does it have music control. The Whistle 05 is also not able to receive or display emails or text messages. In addition, the Whistle 05 does not run a pre-installed mobile operating system that would enable the device to execute processing programs known as “apps.” Consequently, we find that the Whistle 05 is entirely distinguishable from the aforementioned fitness devices and that the Wi-Fi, Bluetooth® and cellular radios featured in the Whistle 05 do not impart the good with its essential character.
As we stated in HQ H308993, dated July 29, 2020, composite machines with Bluetooth® or Wi-Fi capabilities do not default to heading 8517, HTSUS, but rather are classified in the heading that describes their principal function, or essential character in the case of composite goods. For example, in HQ H283180, dated January 21, 2020, CBP determined that certain “SmartPlugs”, which could be controlled by Wi-Fi were not classified in heading 8517. In so doing, CBP observed that the principal function of the SmartPlugs was not the transmission of data but rather to control the electrical current running to appliances to which they are connected. Similarly, in HQ H281100, dated June 27, 2018, CBP discussed its prior ruling concerning the classification of Bluetooth® enabled speakers and determined that the Bluetooth® chip did not impart the principal function. Notably, CBP has declined to classify items in heading 8517 when the exchange of data facilitated by Wi-Fi or Bluetooth® capability did not constitute the principal function of the subject merchandise. See also New York Ruling (NY) N297309, dated June 20, 2018 (alarm clock with Bluetooth®); HQ H271909, dated July 8, 2016 (analog watch with Bluetooth®); NY N245407, dated September 19, 2013 (basketball with Bluetooth®).
The Whistle 05 attaches to a pet via the collar to determine or track in real time the location of the pet and the level of physical movement/exertion. The location and activity functions are carried out by the GPS and the accelerometer. Without the ability to identify the pet’s location and/or the measure the movement of a pet, there would be no need to connect the Whistle 05 to a smartphone. In other words, the transmission of data via Bluetooth®, Wi-Fi, or cellular network is in service of determining a pet’s location and physical activity. As such, we find that the components of the Whistle 05 that transmit data are ancillary to the use of the good, i.e., identifying location and movement activity.
Because the GPS and accelerometer are integrated and function together to track the location of a pet and provide detailed health and activity data, it is impossible to determine which individual component imparts the Whistle 05 with its essential character pursuant to GRI 3(b). GRI 3(c) provides that when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. Among those headings which merit equal consideration pursuant to GRI 3(c), heading 9031, HTSUS – which covers the accelerometer sensor – occurs last in numerical order. Consequently, we find that the Whistle 05 classifiable in heading 9031, HTSUS, pursuant to GRI 3(c).
Our decision is consistent with HQ H246726, dated June 23, 2014, where CBP classified the Adidas miCoach Smart Run fitness watch in heading 9031, HTSUS, by application of GRI 3(c). That product was marketed as a fitness product and consisted of a wristwatch of heading 9102, HTSUS, an MP3 player of heading 8519, a GPS device of heading 8526, a heart-rate monitor of heading 9029 and an accelerometer of heading 9031. Because the MP3 player, GPS, accelerometer and heart-rate monitor are integrated and function together to provide athletic training feedback to the user, CBP was unable to determine which individual component or sensor imparted the miCoach watch with its essential character. Therefore, it was classified in heading 9031, HTSUS, by application of GRI 3(c). Similarly, the Whistle 05 incorporates various components that provide multiple functionalities geared towards position information and fitness. Like the miCoach, the Whistle 05 components function together to provide GPS location and training feedback and the product must be classified by application of GRI 3(c).
HOLDING:
By application of GRIs 3(c) and 6, the subject Whistle 05 is classified in heading 9031, HTSUS, and specifically in subheading 9031.80.80, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Other instruments, appliances and machines: Other.” The column one, general rate of duty for merchandise of this subheading is Free.
Duty rates are subject to change. The text of the most recent HTSUS and the accompany duty rates are provided at www.usitc.gov. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gregory Connor, Chief
Electronics, Machinery, Automotive, and International Nomenclature Branch