CLA-2: RR:CR:TE 967977 KSH
Port Director
Port of Chicago
Customs and Border Protection
610 S. Canal Street Room 306 Chicago, IL 60607
RE: Application for Further Review of Protest 3901-03-102295
Dear Port Director: This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3901-03-102295, filed by Anchor Glass Container Corporation.
The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry invoiced as “Console Compl. VME-BUS” under subheading 8537.10.9070 of the Harmonized Tariff Schedule of the United States (HTSUS) which provides for “[b]oards, 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: For a voltage not exceeding 1000 V: Other, Other: Other” with a rate of duty of 2.7% ad valorem. Liquidation of the entry occurred on October 1, 2003. Protestant entered the merchandise subject to this protest as other parts of “machines for manufacturing or hot working glass or glassware” in subheading 8475.90.9000, HTSUS, free of duty.
Protestant filed a protest with an AFR on December 11, 2003, challenging the reclassification of the entry at issue. The importer’s request for AFR was approved. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).
Protestant has alleged the decision against which the protest is filed as inconsistent with a decision made at a port with respect to the same merchandise. Specifically, protestant states that the same merchandise has always been classified in subheading 8475.90.9000, HTSUS. Thus, further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25.
FACTS:
The merchandise at issue is identified on the invoice as the “Console Compl. VME-BUS” (VME bus). VME bus (Versa Module Europa) is a flexible open-ended bus system which makes use of the Eurocard standard. A Eurocard is a European designed circuit board that uses a 96-pin plug instead of an edge connector making it more durable. It is used in industrial, commercial and military applications. They are used in traffic control systems, weapons control systems, telecommunication switching systems, data acquisition, video imaging and robots. It uses a master/slave architecture and may have several master devices. The VME bus system consists of 4 sub-buses: the data transfer bus, the arbitration bus, the priority interrupt bus and the utility bus. The data transfer bus is used for reading and writing data between modules. The arbitration bus controls the requests from various devices using an arbiter module that gives permission to use the bus and notifies requesting devices when the bus is busy. The priority interrupt bus handles interrupts and monitors and interrupts request lines. The utility bus supports an independent 16 MHz system clock. Power is supplied to modules via pins at +5 V, -12 V and +12 V. An optional battery backup of the +5 V supply can also be present. The VME bus can accommodate up to 21 card slots on its backplane.
ISSUE:
Whether the VME BUS is classified as a board for electric control in heading 8537, HTSUS, or as parts of glass container forming machinery in heading 8475, HTSUS?
LAW AND ANALYSIS: Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Subheading 8537.10.9070, HTSUS, provides for:
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: For a voltage not exceeding 1,000 V: Other, Other: Other.
The EN to heading 8537, HTSUS, provides in relevant part:
These consist of an assembly 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. They usually also incorporate meters, and sometimes also subsidiary apparatus such as transformers, valves, voltage regulators, rheostats or luminous circuit diagrams.
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.
Protestant contends that classification in subheading 8537.10.9070, HTSUS, is incorrect inasmuch as the VME bus does not perform any functions related to the switching of high level voltages or currents nor is it an electrical power distribution or switching apparatus.
Section XVI, Note 2(a) provides:
Subject to note 1 to this section, note 1 to chapter 84 and note 1 to chapter 85, parts of machines…are to be classified according to the following rules:
Parts which are goods included in any of the headings of chapter 84 or 85…are in all cases to be classified in their respective headings;”
Thus, assuming arguendo the VME bus was classifiable in Heading 8475, HTSUS, Section XVI, Note 2(a) requires parts which are goods in any of the headings of Chapter 84 or 85 be classified in their respective headings.
Moreover, the VME bus’ main function is data transfer and arbitration. Accordingly, the VME bus is more accurately described as a board for electric control or the distribution of electricity of heading 8537, HTSUS, than a part of glass container forming machinery under heading 8475, HTSUS.
HOLDING:
The protest should be denied in full. The VME bus is classified in subheading 8537.10.9070, HTSUS, which provides for “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: For a voltage not exceeding 1,000 V: Other, Other: Other.” The duty rate at the time of entry for goods classifiable in this subheading was 2.7 percent ad valorem.
In accordance with the Protest/Petition Processing Handbook, (CIS HB, June 2002, pp 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide
Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division