CLA-2 OT:RR:CTF:TCM H071900 PJG
Mr. James Knight
Supervisory Import Specialist
Port of Boston
U.S. Customs and Border Protection
10 Causeway Street, Room 611
Boston, Massachusetts 02222
Re: Application for Further Review of Protest No. 0401-09-100121; Siren Amplifier Board
Dear Mr. Knight:
This letter is in reference to the Application for Further Review (“AFR”) of Protest No. 0401-09-100121, timely filed on July 17, 2009, on behalf of Acoustic Technology, Inc. (“Acoustic”). The AFR concerns the classification of a siren amplifier board under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The protest at issue involves four entries of merchandise described as the “FG ATI Siren Amplifier Board,” (“board”), a printed circuit board assembly that is a part of the SoundBlaster High Power Speaker Station (“SoundBlaster”), a siren system that can produce up to 3200 W of audio power. According to the SoundBlaster Hardware User Manual, the board includes an amplifier, “an embedded modem, an analog to digital converter, a serial port interface, as well as a wireless and hardwired communication interface.” The board also includes a sine wave tone generator.
The SoundBlaster Hardware User Manual indicates that the board’s microprocessor interfaces with a wireless radio (not included) used “to send and receive wireless messages to and from the [siren’s] Central Control Unit[] (CCU). The board will perform specific activations dependent upon the wireless
messages sent by the CCU in addition to responding to other types of service messages.” According to the importer, the board only produces a sound when it is inside of the siren, attached to the message board, and receiving commands from the CCU through the wireless radio.
The SoundBlaster siren system includes components that were not imported with the board, including a wireless radio, digital message board, horns, antenna, on/off circuit breakers for siren power, and speaker cables.
Protestant entered the merchandise between July 9, 2008 and January 7, 2009 under subheading 8531.90.3000, HTSUS, as “Electric sound or visual signaling apparatus . . . other than those of heading 8512 or 8530; parts thereof: Parts: Other.” U.S. Customs and Border Protection (“CBP”) liquidated the entries under subheading 8518.40.20, HTSUS, on May 1, 2009 and May 22, 2009, as an “audio-frequency electric amplifier[]: Other.”
The importer filed this protest and AFR on July 17, 2009, claiming that the correct classification for the subject merchandise is subheading 8531.80.00, HTSUS, as an “[e]lectric sound or visual signaling apparatus . . . ; parts thereof: Other apparatus; Other sound signaling apparatus,” or, alternatively, subheading 8537.10.90, HTSUS, as “[b]oards, . . . 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 V: Other: Other.”
ISSUE:
What is the correct tariff classification of the board under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C.
§ 1514(a)(2), as a decision on classification. The protest was timely filed within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429,
§ 2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 0401-09-100121 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because although the decision against which the protest was filed involves matters previously ruled on by CBP, facts are alleged or legal arguments are presented that were not considered at the time of the original ruling. Specifically, Protestant argues that the siren amplifier board at issue is not just an amplifier, but it contains the components
that are necessary for the siren to function, and proposes that it is correctly classified in subheading 8531.80.00, HTSUS, as a signaling apparatus. Protestant cites to Headquarters Ruling Letter (“HQ”) 088595, dated September 12, 1991, HQ 088464, dated September 11, 1991, and HQ 071612, dated July 25, 1985, in support of his argument.
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (“GRIs”). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 2008 HTSUS provisions under consideration are the following:
Electric sound or visual signaling apparatus (for example, bells, sirens, indicator
panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof:
* * *
8531.80.00 Other apparatus
* * *
8531.80.00 Other sound signaling apparatus
* * *
8531.90 Parts:
Printed circuit assemblies:
* * *
8531.90.30 Other
* * * * *
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 V:
* * *
8537.10.90 Other
* * *
In addition, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”), while not binding law, are the “official interpretation” of the Harmonized System at the international level and “provide a commentary on the scope of each heading” of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989); see also, Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are “intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation”).
To determine whether an article is a “part”, the U.S. Court of Customs and Patent Appeals (now the U.S. Court of Appeals for the Federal Circuit) issued two rules: the Willoughby rule and the Pompeo rule. See Bauerhin Technologies Limited Partnership v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). The Willoughby rule states that an item is a “part” of an article when it “‘is an integral, constituent or component part, without which the article to which it is to be joined, could not function as such article.’” Id. (quoting United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933)). The Pompeo rule states that an item is a “part” when it is “dedicated solely for use with another article” rather than being “a separate and distinct commercial entity.” See id.; see also ABB, Inc. v. United States, 421 F.3d 1274, 1277 (Fed. Cir. 2005) (defining a “‘distinct and separate commercial entity’” as an article, even when with a “plurality of articles,” wherein the article is “‘complete in itself’” and “‘performs its separate function without loss of any of its essential characteristics’”) (quoting Willoughby Camera Stores Inc., 21 C.C.P.A. at 325). The court in Bauerhin held that when “an imported item is dedicated solely for use with another article and is not a separate and distinct commercial entity,” the Willoughby rule does not apply. Bauerhin Technologies Limited Partnership, 110 F.3d at 779.
The instant board is dedicated for use solely with the SoundBlaster siren system and is not a separate and distinct commercial entity. It is incomplete on its own because it can only emit sound if it is inside the siren, receives signals from the CCU via the wireless radio, and is connected to the message board. As such, the board is a “part” of the SoundBlaster siren system, which is a good classifiable under heading 8531, HTSUS, as an electric sound signaling apparatus.
Additional U.S. Rule of Interpretation (AUSRI) 1 (c) states that “[i]n the absence of special language or context which otherwise requires . . . a provision for ‘parts’ . . . shall not prevail over a specific provision for such part.” AUSRI 1(c) is not applicable to issues governed by Section XVI, Note 2, HTSUS. See HQ 966041, dated April 29, 2003 (citing Mitsubishi International Corporation v. United States, 182 F.3d 884, 886 (Fed. Cir. 1999), and Nidec Corporation v. United States, 18 Ct. Intl’l Trade 821 (1994)). In this case, the tariff classification headings under consideration are all governed by Section XVI, Note 2, HTSUS, therefore, AUSRI 1(c) does not apply.
The board is not subject to Section XVI, Note 2(a) because it is not described by any of the headings in Chapters 84 and 85 of the HTSUS. The board is, however, subject to Section XVI, Note 2(b), which states that “parts, if suitable for use solely or principally with a particular kind of machine . . . are to be classified with the machines of that kind.” Accordingly, the board is classified under heading 8531, HTSUS, as “[e]lectric sound . . . signaling apparatus . . .; parts thereof”, because it is a part that is suitable for use solely with the SoundBlaster siren system. Moreover, as a printed circuit board assembly, the subject merchandise is specifically provided for under subheading 8531.90.30, HTSUS, as “Electric sound . . . signaling apparatus . . . ; parts thereof: Parts: Printed circuit assemblies: Other.”
The merchandise classified in the rulings cited by the Protestant in support of classification as a sound signaling apparatus, are distinguishable from the subject merchandise. In HQ 088595, CBP determined that the electronic burglar alarm control panels that were imported without remote keypads were classified in subheading 8531.90.00, HTSUS, as parts of an electric sound or visual signaling apparatus, because without the keypads, they did “not impart the essential character of the complete or finished” alarm system. Similarly, without the wireless radio and the digital message board, the board does not have the essential character of the complete SoundBlaster siren system because it does not have “any independent sound . . . signaling capability.” See HQ 953154.
In HQ 088595, CBP also classified merchandise identified as “basic alarm systems” under subheading 8531.10.00, HTSUS because the remote keypad unit, which included a control unit, and a keypad unit that consisted of keypad buttons, a built-in sounder, and a multi-functional LED indicator panel, “incorporate[d] substantial and essential features to the alarm systems.” Here, unlike the “basic alarm systems” classified in HQ 088595, the board is imported without a CCU. Although the board contains several main components of the siren system, the board itself cannot emit sound if it is not contained in the siren, receiving signals from the CCU through the wireless radio, and attached to the message board. Therefore, on its own, the board does not incorporate substantial and essential features of the SoundBlaster siren system.
Protestant also cited to HQ 071612, in which CBP classified four models of printed circuit boards “contain[ing] all the circuitry and connectors needed to automatically run an alarm system” and several indicator lights that were “ordinarily lit when the burglar alarm systems . . . [were] activated” under subheading 685.70, TSUS. One of the models had a built-in siren. See HQ 071612. The merchandise was entered without remote sensors, bells, and sirens. See id. CBP determined that the devices were “‘more than’ indicator panels or other visual signaling apparatus” because the lights were not designed to “alert persons to the presence of a potential hazard, and activate or function in temporary or abnormal situations only” and “the devices perform[ed] other significant functions which [were] at least of equal, if not greater, importance in comparison with the function performed by the lights.” See HQ 071612 (citing Amersham Corp. v. United States, 5 CIT 49, 67, 564 F. Supp. 813, 825 (1983), aff’d, 728 F.2d 1453 (Fed. Cir. 1984)). Instead, CBP classified the merchandise as parts of burglar alarms because they “incorporate[d] substantial proportions of the burglar alarm systems they control[led]” and they were “the very essence of those burglar alarm systems.” See id. Similarly, the board is classified under subheading 8531.90.30, HTSUS, as a part of an electric sound signaling apparatus” because it is the main board of a siren system and it incorporates several components that contribute to the functioning of the SoundBlaster siren system.
Protestant argues in the alternative that the device is classified as a
“[b]oard[], . . . for electric control or the distribution of electricity” under heading 8537, HTSUS. In support of this argument, Protestant cites to HQ 088464, in which CBP considered whether the video network system was classifiable under heading 8537, HTSUS. CBP determined that the merchandise, which was designed to monitor and control up to 32 micro-computers, was not classifiable under heading 8537, HTSUS because “[i]t is not used merely for the electric control or the distribution of electricity,” but rather it “is used to perform multiple tasks described in heading 8471, HTSUSA.” Similarly, the board is not classified under heading 8537, HTSUS because it is not just an “apparatus for electric control or the distribution of electricity.” See HQ 953154 (March 29, 1993). In addition to controlling or distributing electricity, the board has amplification abilities. Moreover, to qualify for classification under heading 8537, HTSUS, the board must be “equipped with two or more apparatus of heading 8535 or 8536,” which the Protestant has not established. As such, the board is beyond the scope of heading 8537, HTSUS.
HOLDING:
By application of GRI 1 (Note 2(b) to Section XVI, HTSUS), the siren amplifier board is classified under heading 8531, HTSUS, and specifically, under subheading 8531.90.30, HTSUS, as: “Electric sound . . . signaling
apparatus . . . ; parts thereof: Parts: Printed circuit assemblies: Other.” The 2008 general, column one rate of duty is 1.3%. You are instructed to DENY 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 reliquidation 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the internet 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