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