Application for Further Review of Protest No. 2006-15-101111; Classification of cellphone shells

U.S. Customs and Border Protection HQ H297451 November 3, 2020 OT:RR:CTF:CPMM H297451 KSG CATEGORY: Classification TARIFF NO.: 3926.90.99 Port DirectorU.S. Customs and Border ProtectionPort of New Orleans 423 Canal Street New Orleans LA 70130 Attn: Ann Purdy and Maureen Casey RE: Application for Further Review of Protest No. 2006-15-101111; Classification of cellphone shells Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2006-15-101111, timely filed by Munford Page Hall on behalf of Otter Products , LLC. (“Protestant”). The Protest pertains to the tariff classification of cellphone shells, which the protestant entered under subheading 4202.99.90 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The subject merchandise was entered by protestant from September 24, 2014 to October 31, 2014. CBP liquidated the entries from August 7, 2015, to September 4, 2015, under subheading 4202.99.90, HTSUS, which provides for Trunks, suitcases, vanity cases, attache 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: Other: Other: Other." On October 8, 2015, protestant filed a Protest and AFR regarding the tariff classification of the subject merchandise claiming that the correct classification of the subject merchandise is subheading 3926.90.99, HTSUS. FACTS: This case involves Otter Product’s Symmetry Series cellphone cases. They have a dual material construction. The internal shell is made from a soft thermoplastic elastomer and the outer shell from hard polycarbonate plastic. There is no extra storage for anything but the cell phone. The cases are described as slimmer than the Commuter series. ISSUE: Whether the cellphone cases described above are classified in heading 3926, HTSUS, as an other article of plastic or in heading 4202, HTSUS as a container? 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 HTSUS headings under consideration are the following: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 4202 Trunks, suitcases, vanity cases, attache 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: In Otter Prods., LLC v. United States, 70 F. Supp. 3d 1281 (Ct. Intl' Trade 2015), aff’d 834 F. 3d 1369 (Fed. Cir. 2016), the Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“CAFC”) classified two styles of durable and protective cases designed for cell phones in subheading 3926.90.99, HTSUS. The Commuter series were plastic cases with a smooth exterior that did not cover or enclose the screen of the device. The Defender series were plastic cases with a clear protective plastic membrane, a high-impact polycarbonate shell, a plastic belt clip holster, and a durable outer silicon cover that did not cover or enclose the screen of the device. The Commuter and Defender series cases did not have a protective door or slots for credit cards/IDs. The CIT and CAFC observed that none of the eo nomine articles listed in heading 4202, HTSUS included cell phone cases. The CIT and CAFC noted that a semicolon divided heading 4202, HTSUS into two lists of exemplars. In order for the Commuter and Defender series to fall under the “similar containers” following the second list of exemplars after the semicolon, they had to be made of the listed materials, which was not the case. The courts determined that in order for the Commuter and Defender series cases to be “similar containers” to the exemplars listed before the semicolon, they had to possess the essential characteristics (organizing, storing, protecting and carrying) that united these exemplars. The CAFC clarified that there was no requirement that the merchandise meet all four characteristics to qualify as a “similar container” under heading 4202, HTSUS. However, if an item met only one of the four characteristics, it would not qualify. The courts concluded that although the Commuter and Defender series cases protected the device, they did not organize, store, or carry. The Commuter and Defender Series cases did not serve any organizational purpose because they could only hold one electronic device and not multiple items. The cases did not store because the devices remained fully functional and to store “implies setting something aside” for future use. Otter Prods., 834 F.3d at 1379-80. Therefore, the cellphone cases were not classified in heading 4202, HTSUS. Since the outer shell of the cellphone cases are very similar to the Commuter series, do not carry or hold anything other than the cell phone and are made of hard polycarbonate plastic, they are not classified in heading 4202, HTSUS. The Symmetry cell phone cases are properly classified in subheading 3926.90.99, HTSUS. HOLDING: By application of GRIs 1 and 6, the Symmetry cell phone cases described above are classified in subheading 3926.90.99, HTSUS. The column one, general duty rate is 5.3% ad valorem. You are instructed to GRANT the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, for Craig T. Clark, DirectorCommercial and Trade Facilitation Division CC: Vikki Lazaro, NCSD