CLA-2 CO:R:C:T 950892 CRS
Area Director
New York Seaport
6 World Trade Center
Room 423
New York, NY 10048
RE: Request for clarification of HRL 088316, HRL 087932 and HRL
088486; belts and belting; Note 1(a), Section XVI; Notes 1(a) and
2(b) Chapter 90; General Explanatory Notes, Section XVI, Chapter
90; interpretation of parenthetical references.
Dear Ms. Maguire:
This is in response to a memorandum dated December 18, 1991,
from the Chief, National Import Specialist Branch 1, requesting
clarification of Headquarters Ruling Letter (HRL) 087932 of July
8, 1991, HRL 088316 of July 12, 1991, and HRL 088486 of February
6, 1991. Our decision follows below.
FACTS:
HRL 087932 classified a photocopier machine document feed
belt in heading 9009, HTSUSA. Similarly, HRL 088316 classified a
photocopier document conveyance belt in heading 9009. The crux
of these decisions was that the parentheticals references to Note
1(a), Chapter 90, HTSUSA, which exclude certain articles from
classification in Chapter 90 (including articles of vulcanized
rubber other than hard rubber of heading 4016 and "textile
material" of heading 5911), were limited in scope. In HRL 087932
we concluded:
Although the language preceding the parenthetical
reference to heading 5911 does not mimic the terms of
heading 5911 itself, we do not find this persuasive of
any broad intent to exclude all textiles from Chapter
90. Having consulted the Harmonized System Committee,
and construing the tariff as a whole, in Customs'
opinion, Note 1(a) is limited in scope to the three
headings cited therein....
Consequently, since Note 1(a) was deemed not to apply, a rubber
document conveyance belt (HRL 088316) and a textile document feed
belts (HRL 087932) were classified in heading 9009 pursuant to
Note 2(b), Chapter 90, which directs that, subject to the
provisions of Note 1, parts and accessories suitable for use
solely or principally with a particular kind of machine are to be
classified with the machines of that kind.
HRL 088486 concerned the classification of fork-lift truck
parts, including an air intake hose. There we stated with regard
to the parentheticals references contained in Note 1(a), Section
XVI, HTSUSA, which exclude, inter alia, articles of heading 4016
from classification in Section XVI:
We interpret this parenthetical [to heading 4016] as
being for reference purposes only and therefore
noninclusive, such that articles of heading 4009 are
covered as well.
This view was based on General Explanatory Note I(B)(a), Section
XVI, which indicates that the scope of Note 1(a), Section XVI,
is broader than a plain reading would otherwise suggest. Thus
under the analysis of HRL 088486 Note 1(a), Section XVI, operates
to exclude articles of heading 4009, as well as articles of those
headings expressly referenced.
Your December 18 memorandum contends that the view expressed
in HRL 087932 and HRL 088316, viz., that the parentheticals of
Note 1(a), Chapter 90, are restrictive and thus limited in scope
to the headings expressly cited therein, is inconsistent with the
view in HRL 088486 that the parentheticals of Section XVI are
simply for reference purposes. Accordingly, you have asked for
clarification of these rulings.
ISSUE:
The issues presented are: (1) whether the holding in HRL
087932 is inconsistent with the holding in HRL 088486; and (2)
whether the parenthetical references in the legal notes to the
HTSUSA are to be interpreted liberally or restrictively.
LAW AND ANALYSIS:
The three rulings in question concern different legal notes.
HRL 087932 and HRL 088316 involve the construction of Notes 1(a)
and 2(b), Chapter 90, Section XVIII, HTSUSA; in contrast, HRL
088486 concerns the interpretation of Note 1(a), Section XVI,
HTSUSA.
These notes pertain to different chapters and sections of
the tariff. Nevertheless, because the parenthetical references
contained in the legal notes cited above have been interpreted
differently, it has been argued that the rulings cited above are
in conflict. We do not agree.
Note 1(a), Section XVI
Note 1(a), Section XVI, HTSUSA, excludes the following from
Section XVI:
Transmission or conveyor belts or belting, of plastics
of Chapter 39 or of vulcanized rubber (heading No.
40.10); or other articles of a kind used in machinery
or mechanical or electrical appliances or for other
technical uses, of vulcanized rubber other than hard
rubber (heading 4016).
In HRL 088486 the parenthetical references of Note 1(a), Section
XVI, were liberally interpreted in view of the language of
General Explanatory Note (I)(B)(a), Section XVIII, which states
that Section XVI does not cover:
Transmission or conveyor belts or belting, of plastics
(Chapter 39); articles of unhardened vulcanized rubber
(e.g., transmission or conveyor belts or belting)
(heading 40.10), rubber tyres, tubes, etc., (headings
40.11 to 40.13) and washers, etc. (heading 40.16).
(Emphasis in original).
General Explanatory Note (I)(B)(a) therefore provides guidance
concerning the scope of Note 1(a) by adding, e.g., rubber tyres,
tubes, etc., of headings 4011 to 4013 to the list of exclusions.
On this basis, we stated in HRL 088486 that the parenthetical of
Note 1(a), Section XVI, was for reference purposes only.
Accordingly, it was the opinion of this office that the intent of
the drafters of the Harmonized System was to extend the
exclusionary reach of Note 1(a) to encompass articles of heading
4009.
Note 1(a), Chapter 90
In contrast, the General Explanatory Note, Chapter 90 (there
are no Explanatory Notes to Section XVIII), does not broaden the
plain language of Note 1(a), Chapter 90. In fact, quite the
opposite, it supports a restrictive view of the parentheticals to
Note 1(a) by repeating verbatim the language thereto. Subnote
(a), 1458.
Since photocopier feed belts are not excluded from Chapter
90 by virtue of Note 1(a), they are classifiable according to
Note 2, Chapter 90, which establishes the general rule that parts
and accessories identifiable for use solely or principally with
machines of Chapter 90 are to be classified with the machines of
that kind. However, certain additional exclusions are provided
for in Note 2(a). These are also examined in the Chapter 90
General Explanatory Note which provides that the general rule
regarding parts and accessories does not apply to:
(1) Parts and accessories which in themselves
constitute articles falling in any particular
heading of this Chapter or of Chapter 84, 85 or 91
(other than the residual heading 84.85, 85.48 or
90.33. (sic) For example, a vacuum pump for an
electron microscope remains a pump of heading
84.14; transformers, electro-magnets, capacitors,
resistors, relays, lamps, or valves, etc., remain
classified in Chapter 85; the optical elements of
heading 90.01 or 90.02 remain in the headings
cited regardless of the instruments or apparatus
to which they are to be fitted; a clock or watch
movement is always classified in Chapter 91; a
photographic camera falls in heading 90.06 even if
it is of a kind designed for use with another
instrument (microscope, stroboscope, etc.).
(2) Parts or accessories suitable for use with several
categories of machines, appliances, instruments or
apparatus falling in different headings of this
Chapter are classified in heading 90.33, unless
they are in themselves complete instruments, etc.,
specified in another heading (see paragraph (1)
above). (Emphasis in original).
Thus, whereas the General Explanatory to Section XVI provides
guidance concerning the scope of Note 1(a), Section XVI, by
adding articles of headings 4011 to 4013 to the list of
exclusions, the General Explanatory Note to Chapter 90 does not
affect the plain language of Note 2, Chapter 90. Furthermore,
although the drafters of the Harmonized System could have
excluded document feed belts from Chapter 90, as they did, e.g.,
articles of heading 5911, or vacuum pumps for electron
microscopes, they chose not to exempt feed belts from the general
rule of Note 2, Chapter 90. Since the parenthetical references
of Note 1(a), Chapter 90 are limited in scope, and do not exclude
articles of headings 4010 and 5910, it was therefore the opinion
of this office, as well as of the HSC Secretariat, that Note 2(b)
controlled, and that articles of headings 4010 and 5910
identifiable as parts and accessories of machines of Chapter 90,
are classifiable with those machines, as warranted by the
specific merchandise.
Summary
This sets up the anomalous result that some articles, e.g.,
conveyor or transmission belts or belting of heading 4010, are
classifiable as parts and accessories of machinery if subject to
Note 2, Chapter 90, but in the eo nomine provision for belts or
belting, i.e., heading 4010, if parts and accessories of articles
of Section XVI. Nevertheless, Headquarters considers this result
to be warranted by the difference in the language of the relevant
Explanatory Notes. Accordingly, we do not find there to be any
inconsistency between HRLs 087932, 088486 and 088316.
HOLDING:
Pursuant to the foregoing, HRL 087932, HRL 088486 and HRL
088316 are affirmed.
This decision will be made available to the public through
the Electronic Bulletin Board as well as via Customs' diskette
service. In addition, please ensure that the appropriate field
offices are made aware of this ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division