CLA-2 RR: CR: GC 966044 TPB

Mr. Sidney H. Kuflik
Lamb & Lerch
233 Broadway
51st Floor
New York, NY 10279

RE: Printed Circuit Board Connectors; Multiple Apparatus; Connectors; HQ 965320 Affirmed.

Dear Mr. Kuflik:

This is in response to your letter dated November 12, 2002, on behalf of Bel Fuse, Inc. (“Bel Fuse”), requesting reconsideration of HQ 965320, dated August 2, 2002. We regret the delay in responding.

HQ 965320 concerned a protest issued to the Port of Anchorage, Alaska, which classified, inter alia, a printed circuit board connector (“PCB connector”) containing four (4) RJ45 ports under subheading 8537.10.90, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). We have reviewed this ruling in light of the original Application for Further Review of July 5, 2001, as well as the instant submission. While we agree in part that the legal analysis of HQ 965320 is incorrect, the merchandise in question was, however, classified under the proper heading. Under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the liquidation of the entries covering the merchandise which was the subject of protest is final on both the protestant and CBP. Accordingly, this decision will not impact the classification of the merchandise which was covered by the entries subject to HQ 965320. For the reasons set forth below, the classification of the merchandise in HQ 965320 is deemed to be correct and is affirmed. FACTS:

The merchandise under consideration is described in your original application for further review, in pertinent part, as follows:

0810-1X4T-03 contains four (4) RJ45 connectors. This connector module… contains leads on its bottom to permit connection and soldering to the PC board. 0812-1X1T-03 contains one (1) RJ45 port and two (2) USB ports

ISSUE:

Are boards, panels, consoles, desks, cabinets and other bases equipped with multiples of one type of apparatus of heading 8535 or 8536, HTSUS, classified under that heading, or heading 8537, HTSUS? LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods 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 GRIs may then be applied.

The HTSUSA provisions under consideration are as follows:

Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V:

Lamp-holders, plugs and sockets:

Other:

Coaxial connectors; cylindrical multicontact connectors; rack and panel connectors; printed circuit connectors; ribbon or flat cable connectors

Printed circuit connectors

* * *

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:

For a voltage not exceeding 1,000 V:

Other

Other:

8537.10.9070 Other

HQ 965320 held that models 0810-1X4T-03 (“X4T”) and 0812-1X1T-03 (“X1T”) “constitute an assembly of two or more sockets or apparatus of heading 8536” by virtue of the fact that they contained multiple ports. In order to support this conclusion, HQ 965320 relied upon and incorporated by reference a previous ruling, HQ 964608, dated April 18, 2001, which classified certain video jacks under subheading 8537.10.90, HTSUS. HQ 965320 stated:

In HQ 964608 [date], Customs addressed the classification of multiple connectors in a single unit or module. In that decision, Customs determined that an assembly of multiple video jacks described as “panel connectors of [a] patch panel” were classifiable under subheading 8537.10.90 [HTSUS], as having two or more apparatus of heading 8535 or 8536[.]” Accordingly, we incorporate the relevant LAW AND ANALYSIS section of HQ 964608 into this decision as it is dispositive of the classification of connectors of subheading 8536.69, HTSUS, with multiple jacks, sockets or ports.

However, the merchandise classified in HQ 964608 is not merely an “assembly of multiple video jacks”, but rather a combination of switches and connectors. The FACTS section of HQ 964608 describes the merchandise, in pertinent part, as follows:

The video jacks consist of a housing with two connectors at each end. The housing contains microswitches mounted on a printed circuit board.

It further states in its LAW AND ANALYSIS:

We find that the video jacks are provided for in heading 8537, HTSUS, which describes them more specifically than heading 8536, HTSUS. The video jacks include a printed circuit board. “Boards and panels” are provided [for] within the heading text of heading 8537. The video jacks have two or more apparatus of heading 8535 or 8536, i.e., connectors and switches.

Emphasis added.

As stated above, the merchandise described in HQ 964608 consisted of two types of devices of heading 8536, i.e., connectors and switches. That merchandise falls within the scope of heading 8537, HTSUSA. It does not speak as to the treatment of devices that contain multiples of one type of apparatus of heading 8535 or 8536, HTSUSA, as alleged by HQ 965320, and therefore was erroneously relied upon.

Further, you state that it has previously been the position of Customs and Border Protection (“CBP”) that devices with multiples of one type of apparatus of heading 8536 were classifiable under heading 8536, HTSUSA. You cite HQ 963218, dated May 24, 2000 and HQ 963621, dated August 31, 2000 as evidence of that holding. However, that line of reasoning was revoked by CBP in HQ 964533, dated October 2, 2000. That ruling indicated in its LAW AND ANALYSIS section that in Universal Electronics, Inc. v. United States, 112 F.3d 488 (Fed. Cir., 1997):

… the U.S. Court of Appeals for the Federal Circuit affirmed a decision of the Court of International Trade (Slip Op. 96-48, March 7, 1996), in classifying hand-held remote controls for televisions and stereos as other bases, equipped with two or more apparatus of heading 8536 or 8537, for electric control or the distribution of electricity, in subheading 8537.10.00 (now 10.90), HTSUS. In that case, a user pushing a specified button or switch on the remote completes an electrical circuit. This sends voltage through a microcontroller in the remote to a microcontroller on the television or stereo which, in turn, sends the necessary amount of electricity to effect the channel change. This, in effect, is apparatus containing multiple switches for electric control or the distribution of electricity..

HQ 964533, thereby interpreted Universal to represent a judicial pronouncement as to the classification of articles containing multiples of a single apparatus of heading 8536 (i.e., switches) which would satisfy the requirements of heading 8537, HTSUSA, namely, being equipped with two or more apparatus of heading 8535 or 8536.

However, CBP has recently had an opportunity to re-examine the meaning of Universal in this context, and came to the conclusion that Universal does not, in fact, speak for such devices with multiples of a single type of apparatus. A reading of the facts in the original Universal case before the CIT indicates that the remote controls at issue in that case contained two types of apparatus:

As Universal’s expert in consumer electronics… admit, many buttons that are switches are mounted on these panels. In addition, several terminals which hold batteries in place are mounted on the remote controls. Consequently, the Court finds that the subject remote controls are bases upon which two or more electrical devices of heading 8536 are mounted.

Universal, 20 CIT at 341.

Thus, the Court of International Trade in Universal is describing one type of configuration in which heading 8537, HTSUS, is applicable: where two types of devices of heading 8536 are present, i.e., switches and terminals. Although CBP agrees that Universal was misapplied in HQ 964533, we find that the holding was correct. To this end, in accordance to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice advising interested parties that CBP intended to modify any ruling letters pertaining to switches which contain multiple replications of the same type of device was published on March 10, 2004, in Vol. 38, No. 11 of the Customs Bulletin. That notice indicated that a new ruling, HQ 966188, clarified that although Universal was not properly interpreted, the devices in question nonetheless were classifiable under heading 8537, HTSUSA, under a plain reading of the heading text of 8537, HTSUSA. No comments were received in response to that notice, which has since been published in final form on June 9, 2004, in Vol. 38, No. 24 of the Customs Bulletin.

Similarly, relying upon descriptions provided in the original submission, the merchandise presently under reconsideration consists of devices with multiples of one type of connection apparatus, i.e., ports. Model X4T contains four (4) RJ45 ports, while model X1T contains one (1) RJ45 port and two (2) USB ports. As noted above, heading 8537, HTSUSA, reads in pertinent part, “[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…”. It is CBPs interpretation, as set forth in HQ 966188, that a plain reading of this text would indicate that multiples of one type of apparatus are covered by this heading. The wording of the heading itself does not specifically refer to two or more “types” of apparatus of heading 8536, only two or more apparatus of heading 8536. We see no reason to read additional information into heading 8537 which will narrow the scope of that heading.

Although you indicate there are rulings in existence which were not specifically revoked by CBP, such as HQ 964559, dated July 16, 2001, the line of reasoning that those cases rely upon, i.e. CBPs erroneous interpretation of Universal Electronics, has been revoked per HQ 966188, which underwent a 19 U.S.C. 1625(c) notice and comment period. The notice proposed in the March 10, 2004 Customs Bulletin and the final notice, published in the June 9, 2004 Customs Bulletin indicated that while CBP was specifically referring to particular rulings, the notices also covered any rulings which may exist but had not been specifically identified.

HOLDING:

For the reasons stated above, Bel Fuse’s PC board connector modules, models 0810-1X4T-03 and 0812-1X1T-03, are classified under subheading 8537.10.9070, 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 column one, general rate of duty is 2.7%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECTS ON OTHER RULINGS:

HQ 965320, dated August 2, 2002, is affirmed.


Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division