Reconsideration of NY N240464; affirmed; rigid molded plastic waterproof camera case

HQ H287090 May 13, 2019 CLA-2 OT:RR:CTF:EMAIN:SK CATEGORY: Classification TARIFF NO.: 4202.99.90 Mr. Matthew Nakachi Junker & Nakachi One Market Spear Tower; Suite 3600 San Francisco, CA 94105 RE: Reconsideration of NY N240464; affirmed; rigid molded plastic waterproof camera case Dear Mr. Nakachi: This is in response to your correspondence, dated May 22, 2017, on behalf of your client, GoPro, Inc. (GoPro), requesting reconsideration of New York Ruling Letter (NY) N240464, dated May 3, 2013, in which U.S. Customs and Border Protection (CBP) classified a rigid molded plastic camera housing designed for use with GoPro’s Hero3 camera in subheading 4202.99.90, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “trunks, suitcases, camera cases and similar containers, other, other, other.” You submit that classification of the subject housing is proper in subheading 8529.90.86, HTSUS, as “[P]arts suitable for use solely or principally with the apparatus of heading 8525 to 8528: Other parts of articles of headings 8525 and 8527, except parts of cellular telephones: Other.” Our reconsideration of NY N240464 takes into consideration information provided by counsel to CBP at a meeting held in Washington D.C. on November 29, 2017. A sample of the subject merchandise was provided to CBP for examination. Upon review of NY N240464, we have determined that it is correct. This ruling affirms NY N240464 for the reasons set forth below. FACTS: The article at issue in NY N240464 is a rigid molded plastic case designed for use with GoPro’s Hero3 camera. It is imported separately from the camera’s other accessories and components. The Hero3 camera is designed to digitally record video and audio of the user’s “extreme” activity (i.e. deep sea diving, surfing, skydiving, motorcycling, skateboarding, biking, etc.). The camera usually operates in a hands-free environment, with the camera case mounted onto a helmet, chest harness, or vehicle, among other things. The Hero3 camera is put up as a set for retail sale and packaged together with the following articles: high capacity lithium-ion battery; waterproof camera case; quick release buckle and thumb screw; adhesive mounts; USB cable. These components are also offered for sale separately. Counsel describes the subject merchandise as a camera “housing” that is separately offered for sale in a variety of styles to accommodate specific uses of the camera system as well as to provide cosmetic alternatives to the standard case (i.e., an opaque black housing, a “skeleton” housing which is not waterproof but enhances audio recording, camouflage housing, waterproof housing). The camera is fully functional while enclosed in the case. The case is specially shaped and fitted to accommodate the camera’s operational buttons so that they may be activated while enclosed in the waterproof housing. The Hero3 camera case possesses the following features: A water-tight silicon gasket seal which secures the camera inside the case for use underwater and allows the camera to withstand compression forces up to depths of 60 meters (196.85 feet); Three spring-loaded buttons designed to facilitate functional operation of the camera while underwater at compression depths. The buttons on the exterior of the case are mated with corresponding buttons on the camera secured inside; A replaceable lens (i.e., polarized or dye filer application for underwater filming) that attaches onto the exterior of the case; Padding on the inner rear door ensures a snug fit and stabilizes the camera; A functional heat-sink designed to mate with the GoPro camera to draw heat away from the camera during operation; A flat glass lens with three layers of lens coatings for anti-fog, hydrophilic (water-repelling) and hydrophobic (water-attracting) properties, secured by six screws to ensure a watertight seal; A proprietary release closure device to ensure the housing doesn’t open inadvertently when submerged at depth; A universal mounting system, with a screw-style closure. This system secures the case with the camera inside onto all of GoPro’s various accessories, including a gooseneck clamp, tri-pod stand, head strap, and chest harness. The camera alone is not capable of being mounted onto the accessories; it requires the case for connectability.

ISSUE: Whether the subject GoPro Hero3 is a camera case of heading 4202, HTSUS, or a part of a camera of heading 8529, HTSUS? LAW AND ANALYSIS: The HTSUS provisions under consideration are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: * * * 4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: * * * 8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528: Note 2 to Chapter 39, HTSUS, provides, in pertinent part: 2. This chapter does not cover: * * * (m) Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202; * * * (s) Articles of section XVI (machines and mechanical or electrical appliances); As Chapter 39 Note 2(m) excludes containers of heading 4202, HTSUS, our initial analysis is whether the subject merchandise is classifiable as a “camera case” or “similar container” of heading 4202, HTSUS. Heading 4202, HTSUS, contains both specifically named categories of products as well as residual provisions for “similar containers.” As such, classification within this provision may be pursuant to an eo nomine or an ejusdem generis analysis. Eo nomine provisions are those that describe articles by specific names and not by use. Absent limiting language or contrary legislative intent, eo nomine provisions cover all forms of the named article. Nidec Corporation v. United States, 68 F.3d 1333, 1336 (Fed. Cir. 1995). Names or terms as set forth in the HTSUS are construed according to their common commercial meaning. See Millennium Lumber Distrib. Ltd., v. United States, 558 F.3d 1326, 1329 (Fed. Cir. 2009). In interpreting the scope of an HTSUS term, CBP “may rely on its own understanding of the term as well as lexicographic and scientific authorities.” See Lon-Ron Mft. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). Ejusdem generis means “of the same kind,” and is applicable when examining whether merchandise is “similar” to the named exemplars of a heading. As regards classification as a “similar container” of heading 4202, HTSUS, the courts have indicated that such merchandise possess the essential characteristics or purposes that unite the articles that are enumerated eo nomine. See Totes, Inc. v. United States, 18 C.I.T. 919, 923-24, 865 F. Supp. 857, 871 (1994), aff’d 69 F.3d 495 (Fed. Cir. 1995). Specifically, the U.S. Court of Appeals for the Federal Circuit (CAFC) in Avenues in Leather, Inc. v. United States (Avenues III), 423 F.3d 1326, 1331 (Fed. Cir. 2005) identified four characteristics that unite the exemplars of heading 4202: organizing, storing, protecting, and carrying. As heading 4202, HTSUS, specifically lists “camera cases” as an eo nomine exemplar, our initial determination is whether the subject merchandise falls within the scope of this term. Although the term “camera case” is neither defined in the tariff nor in lexicographic sources, its commercial meaning is well understood. The Merriam-Webster online dictionary defines “camera” as follows: “2b : a device that consists of a lightproof chamber with an aperture fitted with a lens and a shutter through which the image of an object is projected onto a surface for recording (as on a photosensitive film or an electronic sensor) or for translation into electrical impulses (as for television broadcast).” See https://www.merriam-webster.com/dictionary/camera. The same lexicographic source defines “case” as follows: “2a : an outer covering or housing.” See https://www.merriam-webster.com/dictionary/case. As the subject article is a rigid molded plastic container specially shaped to house a camera, it falls squarely within the common commercial meaning of the tariff term “camera case” and is therefore eo nomine classified in heading 4202, HTSUS, as a named exemplar. As such, we do not reach the question of whether the subject merchandise is a “similar container” of heading 4202 pursuant to an ejusdem generis analysis, and there is no need to examine whether it possesses the court-prescribed shared characteristics and purposes of such “similar containers.” We further do not find counsel’s argument that the subject merchandise is classified in heading 8529, HTSUS, persuasive. Heading 8529, HTSUS, provides for, inter alia, “parts” suitable for use solely or principally with digital cameras of heading 8525. The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted.  See Bauerhin Techs. Ltd. v. United States, 110 F.3d 774 (Fed. Cir. 1997), aff’d, 914 F.Supp. 554 (CIT 1995).  The first test, articulated in United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324, T.D. 46851 (1933), requires a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” (citations omitted).  “The mere fact that two articles are designed and constructed to be used together, does not necessarily make either a part of the other.”  Id. (citations omitted).  In Willoughby, the court concluded that even though tripods and cameras at issue were designed to be used together, “in the ordinary use of a camera, the utilization of a tripod is optional.”  Id. at 325.  Since the tripods were not essential to the use of the cameras, there was no basis for classifying them as parts of cameras. The second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9, 13-14, C.A.D. 602 (1955), states that an imported article “dedicated irrevocably” for use with another article is part of that article within the meaning of the HTSUS.  In Pompeo, as the “imported superchargers at the time of importation [were] dedicated solely for use upon automobiles,” and “since when applied to that use they clearly [met] the definition of ‘parts’ established by the Willoughby case” (i.e., the superchargers were integral to the function of the automobile), they were classified as parts of automobiles.  Id. at 14. In the instant matter, we find that for the subject camera cases to be classified as parts of cameras they would have to satisfy the definition of “parts” articulated by the Willoughby court.  In this respect, the camera cases are not necessary for the digital camera to function; rather, like the tripods discussed in Willoughby, the cases augment the use of the camera (i.e., permitting underwater use or enabling hands-free use while mounted to another surface).  For these reasons, although the subject camera cases may be considered “accessories” (see, e.g., Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352-1354 (Fed. Cir. 2002)) we do not find that they satisfy the courts’ standard as to the meaning of “parts” for classification purposes.  Accordingly, classification is not proper in heading 8529, HTSUS.   HOLDING: For the foregoing reasons, we find that the GoPro Hero3 rigid molded plastic waterproof camera case at issue in NY N240464 is correctly classified by application of GRIs 1 and 6 in heading 4202, HTSUS, specifically in subheading 4202.99.90, HTSUS, which provides for “[T]runks, suitcases, camera cases and similar containers: Other: Other: Other.” We therefore affirm NY N240464, dated May 3, 2013. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division