Internal Advice Request No: 10/019; Tariff classification of a side key for use in a cellular telephone

HQ H112615 August 16, 2010 CLA-2 OT:RR:CTF:TCM H112615 EG CATEGORY: Classification TARIFF NO’s.: 8537.10.90 U.S. Customs and Border Protection Port of Anchorage 605 West 4th Ave., Suite 230 Anchorage, AK 99501 Attn: Karen Beaudin, Import Specialist RE: Internal Advice Request No: 10/019; Tariff classification of a side key for use in a cellular telephone Dear Port Director: This letter is in reply to your memorandum dated May 19, 2010, forwarding a request for Internal Advice, initiated by a letter dated April 16, 2010 by LG Electronics Alabama, Inc. (LG). This Internal Advice Request pertains to the tariff classification of a side key, Model No. SPKY 0038204, imported by LG. LG imported the subject entries from 2007 to 2009. A sample was forwarded to this office. FACTS: The side key is a thin sheet of metal with a layer of white plastic on top. The side key measures roughly 2.5 cm x 0.5 cm. On the white plastic side, the side key includes a column of three metal circles, or domes. One metal dome controls lowering the volume, one metal dome controls raising the volume and the third metal dome on the side key controls turning on the camera function. Five thin wires encased in a thin opaque sheet of plastic extend out from the side key. When the cellular telephone is assembled, the side key attaches to the side of the cellular telephone. The five thin wires will connect the side key to a printed circuit board inside the cellular telephone. The user will push the side key to adjust the cellular telephone’s volume and to activate the cellular telephone’s camera function. When the user pushes down on the side key, the respective metal dome will make contact with its thin wire and send an electrical signal through the wire to the printed circuit board.  In its request for Internal Advice, LG takes the position that the side key has been correctly classified from 2007-2009 in subheading 8517.70 of the Harmonized Tariff Schedule of the United States (HTSUS), which covers, in pertinent part, “[t]elephone sets, including telephones for cellular networks or for other wireless networks; . . . parts thereof: parts.” In your memorandum, you state that the side key should be classified under either subheading 8536.50, HTSUS, which covers ““[e]lectrical apparatus for . . . making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs and other connectors, junction boxes), for a voltage not exceeding 1,000 V: other switches,” or subheading 8537.10, which covers “[b]oards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity . . . other than switching apparatus of heading 8517: for a voltage not exceeding 1,000 volts.” ISSUE: Is the side key classifiable under subheading 8517.70, HTSUS, subheading 8536.50, HTSUS, or subheading 8537.10, HTSUS? LAW AND ANALYSIS: 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 following 2009 HTSUS provisions under consideration are: 8517 Telephone sets, including telephones for cellular networks or for other wireless networks; . . . parts thereof: 8517.70 Parts. * * * 8535 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs and other connectors, junction boxes), for a voltage exceeding 1,000 V. * * * 8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables: 8536.50 Other switches. * * * 8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, and numerical control apparatus, other than switching apparatus of heading 8517: 8537.10 For a voltage not exceeding 1,000 volts. * * * Note 2(a) to Section XVI, HTSUS, states that “[p]arts 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.” Additional U.S. Rule of Interpretation 1(c) states that, in the absence of special language or context which otherwise requires, “a provision for parts of an article covers products solely or principally used as part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). Heading 8536, HTSUS, provides for “[e]lectrical apparatus for . . . making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs and other connectors, junction boxes), for a voltage not exceeding 1,000 V.” The term “switch” is not defined in the tariff. When a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576. The Merriam-Webster Online Dictionary defines the term “switch” as “a device for making, breaking, or changing the connections in an electrical circuit.” See www.merriam-webster.com. The side key includes three metal domes which connect to an electrical circuit when pushed down by the user. Therefore, the side key contains three switches because each metal dome forms one connection with a thin wire to form an electrical circuit. Heading 8537, HTSUS, provides for “[b]oards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity.” The EN to heading 8537, HTSUS, states that the heading excludes simple switch assemblies, such as those consisting of two switches and a connector. Such simple switches are classifiable under heading 8536, HTSUS. As the side key at issue contains three switches and five connecting wires, it contains too many switches and connectors to be classified as a simple switch assembly under heading 8536, HTSUS. As the side key is precluded from classification in 8536, HTSUS, the remaining tariff provisions under consideration are subheading 8517.70, HTSUS, and 8537.10, HTSUS. Subheading 8517.70, HTSUS, covers in pertinent part, “[t]elephone sets, including telephones for cellular networks or for other wireless networks; []parts thereof: parts.” The side key is classifiable under subheading 8517.70, HTSUS, as part of a cellular telephone. Subheading 8537.10, HTSUS, covers in pertinent part, “[b]oards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity . . . other than switching apparatus of heading 8517: for a voltage not exceeding 1,000 volts.” The side key is also classifiable under subheading 8537.10, HTSUS, because the side key contains three switches of heading 8536, HTSUS, embedded in a plastic and metal base for electric control or the distribution of electricity. LG asserts that the subject side key is precluded from classification in heading 8537, HTSUS, by the terms of that tariff provision’s heading text which expressly excludes “switching apparatus of heading 8517.” U.S. Customs and Border Protection (CBP) does not agree. In this regard it is noted that EN 85.17(II)(E)(1) defines telephonic switching apparatus as apparatus that “[p]rovide, in response to coded signals, an automatic connection between users” [emphasis added]. Therefore, a switching apparatus classifiable under heading 8517, HTSUS, is an apparatus which connects users. The side key is not a switching apparatus that connects users, but rather a device that signals to the cellular telephone’s printed circuit board that the user has pressed either the volume or the camera button. Accordingly, although the side key is classifiable under heading 8517, HTSUS, as a part of a cellular telephone, it is not classifiable therein as a switching apparatus and classification is therefore not precluded in heading 8537, HTSUS. 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. Additional U.S. Rule of Interpretation 1(c) states that, in the absence of special language or context which otherwise requires, “a provision for parts of an article covers products solely or principally used as part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory”. Although the side key is described as a part of a cellular telephone under heading 8517, HTSUS, the side key is more specifically described in heading 8537, HTSUS, as a base which includes two or more switches. HOLDING: By application of GRI 1, the subject side key is classifiable in subheading 8537.10.90, HTSUS, which provides for “[b]oards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, and numerical control apparatus, other than switching apparatus of heading 8517: for a voltage not exceeding 1,000 volts: other.” The column one, general rate of duty is 2.7 percent ad valorem in the 2009 HTSUS. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the U.S. International Trade Commission’s website at www.usitc.gov. You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and the public on the CBP website located 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