CLA-2 RR:TC:MM 958708 JAS
Mr. J. G. Bradford
Guilford Center, P.O. Box 2500
Greensboro, NC 27420-5000
RE: HQ 088964 Revoked; Membrane Switch Assembly, Keypad With Two Flexible
Membrane Circuits Having Carbon Ink Circuitry Printed on Them, Paper Spacers
and Plastic Graphics; Parts of Electrical Apparatus for Line Telephony or
Telegraphy, Heading 8517; Touch Operated Switch for Making/Breaking Electric Contact in Multiline Telephone Systems, Nidec Corporation v. U.S., Section XVI, Note 2
Dear Mr. Bradford:
In HQ 088964, dated July 23, 1991, we responded to your letter of February 25, 1991, and advised that a membrane switch assembly for multiline telephone sets was classifiable in subheading 8517.90.30, Harmonized Tariff Schedule of the United States (HTSUS), as parts of electrical apparatus for line telephony or telegraphy, telephone sets.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification/revocation of HQ 088964 was published on January 3, 1996, in the Customs Bulletin, Volume 30, Number 1. The one comment received in response to this notice favored the proposal. The commenter noted that the merchandise in issue is plainly described by the language of heading 8537, and that neither the heading text nor the Harmonized Commodity Description and Coding System Explanatory Notes contains limiting language that reduces the scope of heading 8537 to encompass only large scale equipment. - 2 -
Switch assemblies come in various configurations and are often used with printed circuit boards to connect circuits in telephones, computer keyboards, calculators, and children's games. The membrane switch assembly which is the subject of this inquiry is described in HQ 088964 as usually including two flexible membrane circuits, adhesive paper spacers, plastic graphics, and in some variations, molded plastic housings or backplates. The flexible membranes have a carbon ink circuitry printed on them. The switches are assembled in layers and bonded with the self-contained adhesive of the spacers and graphics. The switches vary in size from 2 inches to 8 inches in width and from 4 inches to 18 inches in length, including insertible tails (electrical connectors).
The provisions under consideration are as follows:
8517 Electrical apparatus for line telephony or telegraphy, including
such apparatus for carrier-current line systems; parts thereof:
Other parts, incorporating printed circuit assemblies:
8517.90.12 Parts for telephone sets...8.5 percent
* * * *
8537 Boards, 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 * * *:
8537.10 For a voltage not exceeding 1,000 V:
8537.10.90 Other...4.8 percent
Whether the membrane switch assembly is a good included in heading 8537.
- 3 -
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Subject to certain exceptions that are not relevant here, goods that are identifiable parts of machines or apparatus of Chapter 84 or Chapter 85 are classifiable in accordance with Section XVI, Note 2, HTSUS. Nidec Corporation v. United States, 861 F. Supp. 136, aff'd. 68 F. 3d 1333 (1995). 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. See Note 2(a). Other parts, if suitable for use solely or principally with a particular machine, or with a number of machines of the same heading, are to be classified with the machines of that kind. See Note 2(b).
HQ 088964 cited with approval United States v. General Electric Company, 441 F. 2d 1186, 58 CCPA 152, C.A.D. 1021 (1971). This case, decided under the HTSUS predecessor tariff code, the Tariff Schedules of the United States (TSUS), held that item 685.90, TSUS - the predecessor provision of heading 8537 - was not a "specific" provision for purposes of General Interpretative Rule 10(ij), TSUS. Under Rule 10(ij), a parts provision shall not prevail over a specific provision. This case was believed to be instructive in interpreting the provisions of heading 8537. Initially, we note that the phraseology of item 685.90 and that of heading 8537 are similar but not identical, so that whether General Electric is instructive as to the scope of heading 8537 is unclear. Moreover, Section XVI, Note 2(a) does not require that a heading of Chapter 84 or Chapter 85 be specific; the heading need merely include the good in issue. It is our opinion that the switch membrane assembly is a good included in heading 8537. The use of dial keypads or function keys for telephone sets, goods substantially similar to the membrane switch assembly in issue, involves depressing a key on a keypad to divert an electrical signal so that a printed wiring board (PWB) in the telephone recognizes the key typed. This essentially joins two ends of the electrical path on the PWB, completing an electrical circuit. - 4 -
Relevant ENs at p. 1391, state that the goods of heading 85.37 consist of an assembly of apparatus of the kind referred to in headings 85.35 and 85.36 (e.g., switches and fuses) on a board, panel, console, etc., or mounted in a cabinet, desk, etc., for electric control or distribution of electricity. The membrane switch assembly in issue consists of individual switches bonded together in layers. It meets the description in heading 8537 as a base equipped with two or more apparatus of headings 8535 or 8536 (i.e., switches) for electric control or the distribution of electricity, as required by Section XVI, Note 2(a), HTSUS.
Under the authority of GRI 1, the membrane switch assembly is provided for in heading 8537. It is classifiable in subheading 8537.10.90, HTSUS.
HQ 088964, dated July 23, 1991, is hereby revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
John Durant, Director