CLA-2 OT:RR:CTF:TCM H020140 GC

U.S. Customs and Border Protection
Pembina Service Port
112 W. Stutsman
Pembina, North Dakota 58271

RE: Internal Advice Request; Superseding of Pre-Entry Classification Determination 842496; Tariff classification telecommunication cabinet

Dear Port Director:

This is in response to your request for internal advice, dated October 29, 2007, that you submitted in conjunction with 3M Corporation (3M), which imports telecommunication cabinets that were subject to Pre-Entry Classification Determination (PD) 842496, dated June 5, 1989. In PD 842496, the subject merchandise was found to be classifiable in subheading 8536.90.0030, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) (1989), which provides for, inter alia: “[e]lectrical apparatus for switching or protecting electrical circuits… other, junction boxes” (currently subheading 8536.90.8030, HTSUS).

On July 19, 2007, you issued a Notice of Action proposing to classify the subject merchandise under heading 8517, HTSUS, as “…other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network…”, and 3M filed the instant Internal Advice Request in accordance with Section 177.11, U.S. Customs and Border Protection (CBP) Regulations (19 C.F.R. §177.11).

FACTS:

Identified by item number 4382, the telecommunication cabinet is a steel enclosure measuring approximately 57.5 inches high by 49.75 inches wide by 18 inches deep. Contained within the cabinet are multiple telecommunications cross-connection blocks with testing probes. These cross-connection blocks are used for connecting

phone lines between the telephone company and the end users. Wires are manually connected and disconnected by placing a wire in a slot and turning the cap to make contact.

ISSUE:

Whether the subject telecommunications cabinet is provided for under heading 8536, HTSUS, as electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits, or heading 8537, HTSUS, as cabinets and equipped with two or more apparatus of heading 8535 or 8536 other than switching apparatus of heading 8517?

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 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

8536 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 and other connectors, junction boxes), for a voltage not exceeding 1,000 V; connectors for optical fibers, optical fiber bundles or cables: 8536.90 Other apparatus: 8536.90.80 Other… * * * 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: 8537.10 For voltage not exceeding 1,000 V: 8537.10.90 Other…

In discussing the difference between headings 8536 and 8537, CBP states in Headquarters Ruling Letter (HQ) 963218, dated May 24, 2000, the following:

From their respective terms, headings 8536 and 8537 are mutually exclusive. Heading 8536 covers individual apparatus such as relays or fuses, or multiples of one such apparatus, that are principally used for switching or protecting or for making connections to or in electrical circuits. On the other hand, heading 8537 covers assemblies of the apparatus described in heading 8536, for example, combinations of relays and fuses on a board, panel or other base whose principal use is to control or distribute electricity.

Harmonized Commodity Description and Coding System Explanatory Note (EN)( 85.37 states the following, in pertinent part:

[Goods of heading 8537] consist of an assembly of apparatus of a 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. * * * The goods of this heading vary from small switchboards with only a few switches, fuses, etc.… to complex control panels…

The cross connection blocks within the subject telecommunications cabinet are covered by heading 8536, HTSUS, as they are apparatus for making connections to or in electrical circuits. In Headquarters Ruling Letter (HQ) 966607, dated June 2, 2004, we stated that, “…multiples of one type of apparatus [of heading 8535 or 8536] are covered by [heading 8537, HTSUS]. 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”. The cross connection blocks are mounted in multiples (more than one) along with testing probes in the instant telecommunications cabinets. Accordingly, the subject merchandise meets the terms of heading 8537, HTSUS, and is thus excluded from heading 8536, HTSUS.

We note that heading 8537, HTSUS, does not cover switching apparatus of heading 8517, HTSUS. Heading 8517 provides for, in pertinent part: “…other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network….” EN 85.17(II)(E) describes two types of switching apparatus covered by heading 8517, HTSUS, automatic and non-automatic switchboards and exchanges. In either case, the electric signal generated by a caller will initiate a sequence whereby a switch is activated in order to complete the connection between the caller and the receiver.

The instant telecommunications cabinets do not feature switches and are not used in such a manner. They merely serve as the junction point for the telephone cable to be split into the individual phone lines that run through a building. Once the connection between the phone cable and the individual phone lines are made in the

cross-connection blocks, the telecommunications cabinet merely enables the distribution of the electric phone signal. Accordingly, the instant communications cabinets are not switching apparatus of heading 8517, HTSUS, and remain classified in heading 8537, HTSUS.

HOLDING:

By application GRI 1, the subject telecommunications cabinets (item number 4382) are classifiable under heading 8537, HTSUS, and specifically provided for in subheading 8537.10.90, HTSUS, which provides for, in pertinent part: “…cabinets… equipped with two or more apparatus of heading 8535 or 8536, for electrical control or the distribution of electricity…, other than switching apparatus of heading 8517: For voltage not exceeding 1,000 V: Other….” The column one, general rate of duty is 2.7 percent ad valorem.

Duty rates are provided for your convenience and 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. PD 842496, dated June 5, 1989 is hereby superceded by this decision with respect to the 3M telecommunication cabinets at issue. This decision is effective 60 days from the date of this ruling.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division