Revocation of NY N055503; Classification of Demy Digital Recipe Reader

HQ H068288 September 19, 2011 CLA-2: OT:RR:CTF:TCM H068288 TNA CATEGORY: Classification TARIFF NO.: 8543.70.92 Jane L. Taeger, Director of Compliance Samuel, Shapiro & Company, Inc. One Charles Center 100 N. Charles Street, Suite 1200 Baltimore, MD 21201 RE: Revocation of NY N055503; Classification of Demy Digital Recipe Reader Dear Ms. Taeger: This letter is in response to your request on behalf of your client, Key Ingredient Corporation (“Key Ingredient”), for reconsideration of New York Ruling Letter (“NY”) N055503, dated April 20, 2009. In NY N055503, U.S. Customs and Border Protection (“CBP”) classified the Demy Electronic Recipe Reader under subheading 8543.70.96, Harmonized Tariff Schedule of the United States (HTSUS), as “[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: Other machines and apparatus: Other: Other: Other.” We have reviewed NY N055503 and found it to be incorrect. For the reasons set forth below, we hereby revoke NY N055503. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N018967 was published on June 9, 2010, in Volume 44, Number 24, of the Customs Bulletin.  CBP received one comment in response to this notice, which is addressed in the ruling. FACTS: The merchandise at issue is the “Demy,” a portable digital recipe reader. The Demy measures 7.8 inches in length by 5.4 inches in width and contains a 7 inch color touch-screen with a graphical navigation interface. The screen can be read horizontally or vertically and will automatically adjust based on the device’s placement. The Demy stores and sorts recipes, photographs and definitions of completed food dishes. The device comes preloaded with 250 recipes, and a consumer can download up to 2500 of their own recipes from Key Ingredient’s website. To do so, consumers connect the Demy to their personal computer via a USB cable. On the Demy, recipes are indexed and can be retrieved alphabetically. The recipes can also be filed on the “Short List,” another of the device’s applications, for quick retrieval. Another of the Demy’s functions is to list common food ingredients, describe each ingredient, supply a photo of it, and suggest a substitute. In addition, the device includes a specialized application for the conversion of measurements but does not otherwise contain a calculating device. It also incorporates a piezo buzzer for the alarm in the device’s “Kitchen Timer” application. The Demy comes packaged with an AC adapter, USB cable, and documentation. ISSUE: Whether the Demy electronic recipe reader is classified in subheading 8543.70.96, HTSUS, as an “other” electrical machine or apparatus having individual functions not specified or included elsewhere, or in subheading 8543.70.92, HTSUS, as an electrical machine with translation or dictionary functions? 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 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. The HTSUS subheadings 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: 8543.70.9200 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 It is not in dispute that electronic digital readers such as the Demy are not specifically provided for in any heading of chapter 85, HTSUS. They are therefore classified in heading 8543, HTSUS, because their only function is to enable recipes to be read electronically. It is also not in dispute that the Demy is classified under subheading 8543.70, HTSUS, because electronic readers are machines “other” than the ones named in subheadings 8543.10 through 8543.30 of the heading. Thus, the issue here is the correct 8-digit classification of the Demy. In your letter of July 2, 2009, you argue that the Demy is properly classified under subheading 8543.70.92, HTSUS, which provides for electrical machines with translation or dictionary functions. You reason that the Demy performs a dictionary function. In support of your argument, you quote the Merriam Webster’s Dictionary definitions of “dictionary,” which include: “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,” as well as “a computerized list (as of items of data or words) used for reference (as for information retrieval or word processing).” See www.merriam-webster.com. Because the HTSUS does not define the term “dictionary,” 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. The Oxford English Dictionary, for example, defines “dictionary” as: 1.a. 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; and in larger dictionaries the information given is illustrated by quotations from literature; a word-book, vocabulary, or lexicon. d. An ordered list stored in and used by a computer; spec. (a) a list of contents, e.g. of a database; (b) a list of words acceptable to a word-processing program, against which each word of text is checked. 2.a. By extension: A book of information or reference on any subject or branch of knowledge, the items of which are arranged in alphabetical order; an alphabetical encyclopædia: as a Dictionary of Architecture, Biography, Geography, of the Bible, of Christian Antiquities, of Dates, etc. The Demy contains both a recipe list and an ingredient list that are in alphabetical order and which contain definitions and pictures of the items. As such, we find that the definition of “dictionary” encompasses the Demy, which is a recipe dictionary. Accordingly, the Demy is classified under subheading 8543.70.92, HTSUS, as an electrical machine with a dictionary function. The Demy is imported packaged together with various accessories ready for retail sale. Merchandise classifiable under more than one heading is classified according to GRI 3. GRI 3(b) provides, in relevant part: 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: … Mixtures, composite goods consisting or 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, insofar as this criterion is applicable. 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). EN VIII to GRI 3(b) provides: 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. EN X to GRI 3(b) provides: For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity…; and (c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards). The Demy meets the description of “goods put up in sets for retail sale.” The components of the sets consist of various articles, which, if imported separately, would be classified in different headings. The AC adapter (heading 8504, HTSUS), USB cable (heading 8544, HTSUS) are put up together with the Demy (heading 8543, HTSUS) to carry out the specific activity of operating the Demy. As imported, they are packaged for retail sale to the ultimate purchaser without the need for repacking. See EN GRI 3(b). The essential character of this set is conveyed by the Demy because it is the reason why a consumer would purchase the set. CBP received one comment in response to the proposed revocation. The commenter noted that NY N067876, dated August 7, 2009, classified three models of the Wikireader, one of which is similar to the Demy. As a result, commenter requested that CBP reconsider its classification of that model. In response, we note that NY N067876 was already the subject of a reconsideration request, and that our office is currently considering the matter. HOLDING: Under the authority of GRI 1, the Demy is classified in heading 8543, HTSUS. It is specifically provided for in subheading 8543.70.92, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter: Other machines and apparatus: Other: Other: Electrical machines with translation or dictionary functions…” The 2009 column one, general rate of duty is free. When the Demy and the accessories with which it is packaged are imported as a set, the set is also classified in subheading 8543.70.92, HTSUS, pursuant to GRI 3(b). EFFECT ON OTHER RULINGS: NY N055503, dated April 20, 2009, is revoked. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division