CLA-2 CO:R:C:M 088964 MBR
Mr. J. G. Bradford
AT&T, Import Specialist
Guilford Center
P.O. Box 25000
Greensboro, NC 27420-5000
RE: Membrane Switch Assemblies for Multiline Telephone Sets;
Section XVI, Note 2(b); Subheading 8517.90.30; Subheading
8537.10.00; Section XVI 2(a); Explanatory Note 85.37;
United States v. General Electric; United States v.
Rembrandt Electronics; Kyocera International, Inc., v.
United States; H. Rep. No. 100-576;
Dear Mr. Bradford:
This is in response to your letter of February 25, 1991, on
behalf of AT&T, requesting a tariff classification of "Membrane
Switch Assemblies" for multiline telephone sets, imported from
Mexico under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), which has been referred to this office for a
reply.
FACTS:
The "Membrane Switch Assemblies" for multiline telephone
sets are comprised of four models identified as 3019-104288402,
3042C 4BP-105201990, 3042D-845459197, and III BK IDT 846337632.
They usually include two flexible membrane circuits, adhesive
paper spacers, plastic graphics, and in some variations, molded
plastic housings or backplates. The flexible membranes are clear
Melinex plastic that have a carbon ink circuitry printed on them.
The switches are assembled in layers and bonded together with the
self-contained adhesive of the spacers and graphics. They are
varied in size from 2" to 8" in width and 4" to 18" in length
including the insertible tails (electrical connectors). These
switches are used exclusively in AT&T small multiline telephone
systems.
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ISSUE:
Whether the article in question is properly classifiable
within subheading 8537.10.00, HTSUSA, which 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 . . . [f]or a voltage not exceeding
1,000 V."; or within subheading 8517.90.30, HTSUSA, which
provides for: "[e]lectrical apparatus for line telephony or
telegraphy, including such apparatus for carrier-current line
systems; parts thereof: [p]arts: [o]f telephonic apparatus: [o]f
telephone sets."
LAW AND ANALYSIS:
Section XVI, Legal Note 2(b), states that parts if suitable
for use solely or principally with a particular kind of machine
are to be classified with that machine. Clearly, the membrane
switch assemblies at issue are parts suitable for use solely or
principally with telephone systems. Multiline telephone sets
(including key, call director and consoles) are provided for
within subheading 8517.10.00, HTSUSA. However, parts of
telephone sets are provided for within subheading 8517.90.30,
HTSUSA.
Additionally, Section XVI, Legal Note 2(a), 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. The Membrane Switch Assemblies are prima facie
classifiable in heading 8537, HTSUSA, which 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." (Emphasis added).
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) to heading 8537, page 1391, 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 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." However, the
instant merchandise is not described by the terms of heading
8537, and thus is not properly classifiable therein. See HQ
087362, dated February 19, 1991, which held that a cellular
mobile telephone (CMT) keyboard assembly was not properly
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classifiable in heading 8537, but was classifiable in subheading
8529.90.50, HTSUSA, which provides for other parts suitable for
use solely or principally with the apparatus of heading 8525
(i.e., CMTs). See also NY 863577 which classified molded silicon
rubber pads used for switching (buttons) in a telephone set in
subheading 8517.90.30, HTSUSA.
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
"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 Membrane Switch
Assemblies in question may literally be involved with the use of
electricity, they are not specifically described within either
the text or ENs of heading 8537. However, there is no dispute
that they are accurately described as parts of multiline
telephone sets.
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,
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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.
The rationale of Rembrandt is not instructive for the
resolution of this ruling because the Membrane Switch Assemblies
at issue are not, like the television switches, an item
specifically enumerated within the provision for electrical
apparatus for making or breaking electric circuits. As stated
previously, they do 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 the instant Membrane Switch Assemblies
within the heading for parts of telephone sets, as opposed to
the classification 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 Membrane Switch Assemblies at issue
within subheading 8517.90.15, 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
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Sess. 548 (1988) at 550. In this instance, the nomenclature has
remained unchanged and the text of the HTSUSA does not require a
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.
HOLDING:
The AT&T Membrane Switch Assemblies for multiline telephone
sets are properly classifiable within subheading 8517.90.30,
HTSUSA, which provides for: "[e]lectrical apparatus for line
telephony or telegraphy, including such apparatus for carrier-
current line systems; parts thereof: [p]arts: [o]f telephonic
apparatus: [o]f telephone sets." The rate of duty is 8.5 percent
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division