CLA-2 CO:R:C:G 087362 AJS
Mr. George Kleinfeld
Paul, Weiss, Rifkind, Wharton & Garrison
1615 L Street, N.W.
Washington, D.C. 20036-5694
RE: Keyboard for cellular mobile telephone; Section XVI, Note
2(b); Subheading 8525.20.60; Subheading 8529.90.50; Section XVI
2(a); Heading 8537; Explanatory Note 85.37; switchgear
assemblies; switchboard; United States v. General Electric;
United States v. Rembrandt Electronics; Kyocera International,
Inc., v. United States; H. Rep. No. 100-576; Cellular Mobile
Telephones and Subassemblies from Japan: Final Results of
Antidumping Duty Administrative Review (A-588-405).
Dear Mr. Kleinfeld:
Your letter of May 11, 1990, requesting a tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), has been referred to this office for
reply.
FACTS:
The article in question is a keyboard assembly comprised of
20 push button type switches, 14 pin type connectors, and 11
metal contacts which all are affixed to a printed circuit board.
The article is inserted into the logic board of a cellular mobile
telephone (CMT). When a key on the CMT dialpad is depressed the
keyboard diverts an electrical signal along a certain path so
that the logic circuit board assembly recognizes the path (i.e.,
key typed). The keyboard's function enables the user to make a
telephone call or avail themselves of any of the other functions
of the CMT.
ISSUE:
Whether the article in question is properly classifiable
within subheading 8537.10.00, HTSUSA, which provides for
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"[b]oards, panels (including numerical control 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 . . . [f]or a voltage not exceeding
1,000 V."; or classifiable within subheading 8529.90.50 which
provides for other parts suitable for use solely or principally
with the apparatus of heading 8525 (i.e., CMTs).
LAW AND ANALYSIS:
Section XVI states that parts if suitable for use solely or
principally with a particular kind of machine are to be class-
ified with that machine. Section Note 2(b). The keyboard at
issue is a part suitable for use solely or principally with a
CMT. CMTs are provided for within subheading 8525.20.60, HTSUSA,
which provides for other transmission apparatus for radio-
telephony incorporating reception apparatus. However, parts of
the articles of heading 8525, HTSUSA, are provided for within
heading 8529, HTSUSA. More specifically, the keyboard at issue
is provided for within subheading 8529.90.50, HTSUSA.
Section XVI additionally states that parts which are goods
included in any of the headings of chapters 84 and 85 are in all
cases to be classified in their respective headings. Section
Note 2(a). It is asserted that the keyboard in this case is
classifiable as an "other base", equipped with two or more
apparatus of heading 8536, for electric control or the
distribution of electricity, and thus requires the application of
the above section note. We disagree with this assertion and do
not find section note 2(a) applicable in this instance.
Heading 8537, HTSUSA, provides for "[b]oards, panels
(including numerical control 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." The subject keyboard is a printed circuit board assembly
which is inserted into the logic board of a CMT. When the user
depresses a key on the keypad, the keyboard diverts an electrical
signal along a path so that the logic board of the CMT recognizes
the key typed. This function enables the user to make telephone
calls or use other functions on the key pad. This type of device
is not described by the terms of heading 8537, and thus is not
classifiable therein.
The Explanatory Notes (ENs) to heading 8537 state that the
merchandise of this heading consists of an assembly of apparatus
of the kind referred to in the two preceding headings (e.g.,
switches and fuses) on a board, panel, console, etc., or mounted
in a cabinet, desk, etc. In addition, the ENs state that the
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goods of this heading vary from small switchboards with only a
few switches, fuses etc. (e.g., for lighting installations) to
complex control panels for machine tools, rolling mills, power
stations, radio stations etc., including assemblies of several of
the articles cited in the text of this heading. It is
additionally claimed that the keyboard at issue is properly
classifiable as "switchgear assemblies and switchboards for a
voltage not exceeding 1,000 V."
A "switchgear assembly" is described as "assembled equipment
(indoor or outdoor) including, but not limited to, one or more of
the following: switches, interrupting, control, instrumentation,
metering, protective and regulating devices, together with their
supporting structures, enclosures, conductors, electric
interconnections, and accessories. IEEE Standard Dictionary of
Electrical and Electronic Terms (IEEE), second ed. p. 695 (1977).
The keyboard does not satisfy this description. It does not
contain any type of interrupting, control, instrumentation,
metering, protective or regulating devices.
A "switchboard" is described by the IEEE as:
"(1) (electric power systems). A large single panel, frame
or assembly of panels, on which are mounted, on the
face or back or both, switches, overcurrent and other
protective devices, buses, and usually instruments."
"(2) (power switchgear). A type of switchgear assembly that
consists of one or more panels with electric devices
mounted thereon, and associated framework."
"(3) (transmission and distribution). When referred to in
connection with supply of electricity, a large single
panel, frame or assembly of panels, on which are
mounted (on the face, or back, or both), switches,
fuses, buses and usually instruments." IEEE at 694-95.
A keyboard used within a CMT to divert electrical signals
along a certain path so that the logic circuit board assembly
recognizes the key depressed does not embody the type of article
described as "switchgear assemblies" or a "switchboard".
In United States v. General Electric Company (General
Electric), 441 F.2d 1186, 58 CCPA, C.A.D. 1021 (1971), the Court
of Customs and Patent Appeals (CCPA) addressed the application of
item 685.90, Tariff Schedules of the United States (TSUS). Item
685.90 is the predecessor provision of heading 8537, HTSUSA. The
Court considered the applicability of General Interpretative Rule
10(ij) which provides that an article cannot be classified as a
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"part" if there is a specific provision for the article. The
CCPA specifically rejected the argument that the provision of
item 685.90, TSUS, for "other electrical apparatus for making or
breaking electrical circuits" must prevail over the provision for
parts of radio reception apparatus within item 685.22, TSUS. The
Court held that the Customs Court was correct in its holding that
imported jacks, used in low current audio circuits, are not
specifically provided for in item 685.90, TSUS. Instead, the
jacks were held properly classified as parts of radio reception
apparatus.
The CCPA in General Electric also stated in reference to
item 685.90, TSUS, "that a seemingly broad descriptive tariff
term is not to be taken as encompassing every article which may
literally come within that term but rather only those articles of
the type intended by Congress . . ." Heading 8537, HTSUSA, is
equally as broad as item 685.90, TSUS. While the keyboard in
question may literally be involved with the use of electricity,
it is not specifically described within either the text or ENs of
heading 8537. However, there is no dispute that the keyboard in
question is accurately described as a part of a CMT.
Rule 10(ij) is essentially embodied within Section XVI, note
2(a). In this case, we do not agree that the broad descriptive
tariff provision of heading 8537, HTSUSA, must prevail over the
provision for parts of CMTs. The keyboard in this instance is
not specifically provided for within heading 8537, HTSUSA. It is
dedicated for use as an integral part of a CMT, and classifiable
as such.
The CCPA revisited the rationale of General Electric in
United States v. Rembrandt Electronics (Rembrandt), 405 F.Supp
588, rev'd 542 F.2d 1154 (1976). The Court reversed the holding
of the Customs Court that switches which were designed for
specific and sole use with television antennae were classifiable
as television apparatus and parts within item 685.20, TSUS.
Instead, the Court held that the switches were properly
classifiable as electrical switches within item 685.90, TSUS.
The Court based its reversal on the fact that the distinction
between "electric power circuits" and "low current audio
circuits" emphasized in General Electric, and relied upon by the
Customs Court, did not exist. Rembrandt at 1156. The Court held
that item 685.90, TSUS, must apply to merchandise enumerated
therein without regard to whether the circuit in which it is used
is a power or low-current circuit. Rembrandt at 1156. However,
the Court did not reverse the result reached in General Electric
because the rationale of the decision was based on the relative
specificity of the competing provisions and not the type of
circuit involved.
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The rationale of Rembrandt is not instructive for the
resolution of this ruling because the keyboard at issue is not,
like the television switches, an item specifically enumerated
within the provision for electrical apparatus for making or
breaking electric circuits. As stated previously, the keyboard
does not satisfy the description of any of the items enumerated
within the text or ENs of heading 8537, HTSUSA. Accordingly, the
decision reached in Rembrandt is inapplicable in this instance.
The Court of International Trade applied the General
Electric rationale regarding the scope of item 685.90, TSUS, in
Kyocera International, Inc., v. United States (Kyocera), 527
F.Supp 337 (1981), aff'd 681 F.2d 796 (1982). Kyocera dealt with
the classification of certain ceramic articles used in the
manufacture of integrated circuits. The Court cited verbatim the
above discussed language from General Electric dealing with the
scope of item 685.90, TSUS. The Court concluded that the
provision for "other electrical apparatus . . . for the
protection of electrical circuits or for making connections to or
in electrical circuits" within item 685.90, TSUS, was not a
specific provision for the subject parts of integrated circuits,
and that these parts are properly classifiable as parts of other
related electronic crystal components. This conclusion supports
the classification of CMT keyboards within the heading for parts
of CMTs as opposed to that of "other bases" equipped with two or
more apparatus of heading 8536 for electric control or the
distribution of electricity.
The Court in Kyocera also addressed the applicability of
General Interpretative Rule 10(ij). Based on the conclusion that
integrated circuit parts were not specifically provided for
within item 685.90, TSUS, the Court stated that Rule 10(ij) was
inapplicable. The Court stated that "[t]he record establishes,
and the defendant concedes, that the imports are parts of `other
related electronic crystal components'." This type of situation
also exists in the present case, and lends additional support for
the classification of the keyboards at issue within subheading
8529.90.50, HTSUSA.
Congress has indicated that earlier tariff rulings must not
be disregarded in applying the HTSUSA. The conference report to
the Omnibus Trade Bill of 1988, states that "on a case-by-case
basis prior decisions should be considered instructive in
interpreting the HTS[USA], particularly where the nomenclature
previously interpreted in those decisions remain unchanged and no
dissimilar interpretation is required by the text of the
HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2D Sess. 548 (1988)
at 550. In this instance, the nomenclature has remained
unchanged and the text of the HTSUSA does not require a
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dissimilar interpretation. Accordingly, we find the previously
discussed decisions regarding the scope of item 685.90, TSUS, to
be instructive regarding the interpretation of heading 8537,
HTSUSA.
The presumption is that CMT subassemblies are covered by
Antidumping Duty Order (A-588-405) unless an importer can prove
otherwise. 55 Fed. Reg. 34, 5867 (1990). An importer will have
to file a declaration with the Customs Service to the effect that
a particular CMT subassembly is not dedicated exclusively for use
in CMTs or that the dollar value is less than five dollars, if
they wish to be excluded from this order. Counsel on behalf of
the importer has filed no such a declaration. Instead, counsel
claims that the subject article is not a "subassembly" within the
meaning of this order. We refer counsel to the Department of
Commerce for the resolution of this issue. Otherwise, the
subject article is presumed to be covered by this order.
HOLDING:
The keyboard at issue is properly classifiable within
subheading 8529.90.50, HTSUSA, which provides for other parts
suitable for use solely or principally with the apparatus of
heading 8525 to 8528 dutiable at the rate of 5.9 percent ad
valorem.
CMT subassemblies are covered by Antidumping Duty Order A-
588-405 unless the importer can prove otherwise. If the importer
wishes to be excluded from this order they must file the
appropriate declaration. No such declaration has been filed in
this case. Counsel should contact the International Trade
Administration at the Department of Commerce to resolve this
issue.
Sincerely,
John Durant, Director
Commercial Rulings Division