CLA-2 CO:R:C:M 956737 DWS

Mr. Bryant Dunetz
CICAT, Inc.
9669-D Main Street
Fairfax, VA 22032

RE: "ROTODAT" Passive Data Communication Device; Programmable Logic Controllers; Accessory; HQ 955987; Chapter 90, Note 6; Explanatory Note 85.37; 8537.10.90; 9032.90.60

Dear Mr. Dunetz:

This is in response to your letter of June 23, 1994, to the Area Director of Customs, New York Seaport, concerning the classification of the "ROTODAT" passive data communication device under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter has been referred to this office for a response.

FACTS:

The merchandise consists of the "ROTODAT" passive data communication device (model no. Rinf-VO1), which is manufactured in Hungary. The "ROTODAT", in utilizing infrared technology, enables uninterrupted data communications over a programmable logic controller (PLC) network within a manufacturing process, where the use of direct hard wire connections are impractical. You have advised this office that the PLCs themselves are for general application, and can be utilized in any manufacturing process which incorporates PLCs. The merchandise's transmitter and receiver function in high speed half duplex networks, operating at signal frequencies of approximately 500 Khz. At these frequencies, the device transforms bi-directional signals into coherent light emitting diode (LED) infrared transmissions, thus isolating the signals from the effects of dynamic mechanical interfaces.

The main cylindrical body and mounting plates of the "ROTODAT" are made of steel and are structurally designed for easy installation with eight bolts. The electronics are mounted within each cylindrical half to provide the required fixed alignment for transmission. The two halves are attached by a sealed bearing.

The subheadings under consideration are as follows:

9032.90.60: [a]utomatic regulating or controlling instruments and apparatus; parts and accessories: [p]arts and accessories: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 4.9 percent ad valorem.

8537.10.90: [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, including those incorporating instruments or apparatus of chapter 90, other than switching apparatus of heading 8517: [f]or a voltage not exceeding 1,000 V: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.3 percent ad valorem.

8543.80.95: [e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: [o]ther machines and apparatus: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.9 percent ad valorem.

ISSUE:

Whether the "ROTODAT" is classifiable under subheading 9032.90.60, HTSUS, as an accessory of an automatic controlling instrument, under subheading 8537.10.90, HTSUS, as a control panel, or under subheading 8543.80.95, HTSUS, as an other electrical apparatus, not specified or included elsewhere in chapter 85, HTSUS.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

You claim that the "ROTODAT" is an accessory of the PLCs which they facilitate. In HQ 955987, dated June 30, 1994, we stated that:

[t]he term "accessory" is not defined either in the text of the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes. However, an accessory, while identifiable as being intended solely or principally for use with a specific article, is generally not necessary to enable a good with which it is used to fulfill its intended function. Accessories are of secondary importance, not essential in and of themselves. However, they must somehow contribute to the effectiveness of the principal article, they must facilitate its use or handling, widen its range of uses, or improve its operation.

It is our position that, in enabling uninterrupted data communications among PLCs in a manufacturing process, the "ROTODAT" contributes to the effectiveness of, and improves the operation of, the PLCs. Consequently, the "ROTODAT" is an accessory of the PLCs.

Because the "ROTODAT" is an accessory of the PLCs, we must first determine the classification of the PLCs under the HTSUS before we can determine the classification of the "ROTODAT".

You state that you were orally advised that the "ROTODAT" may be classifiable under subheading 9032.90.60, HTSUS, as an accessory, because the PLCs are classifiable under heading 9032, HTSUS.

Chapter 90, note 6, HTSUS, states that:

[h]eading 9032 applies only to:

(a) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled; and

(b) Automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.

As previously stated, you have advised us that the PLCs, although capable of performing the applications described under chapter 90, note 6, HTSUS, are capable of performing an application in any manufacturing process which incorporates PLCs. Therefore, the PLCs are precluded from classification under heading 9032, HTSUS, because that heading is limited to very specific applications, whereas the subject PLCs are capable of performing general applications. Consequently, the "ROTODAT" is not classifiable under subheading 9032.90.60, HTSUS.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In discussing the scope of heading 8537, HTSUS, Explanatory Note 85.37 (p. 1391) states that:

[t]hese consist 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. 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.

The heading also covers:

(1) - (2) xxx

(3) "Programmable controllers" which are digital apparatus using a programmable memory for the storage of instructions for implementing specific functions such as logic, sequencing, timing, counting and arithmetic, to control, through digital or analog input/output modules, various types of machines.

The "ROTODAT" itself is not classifiable under subheading 8537.10.90, HTSUS, because it does not in any way control or distribute electricity. It is a passive data communication device, and such articles are not described by heading 8537, HTSUS. However, because the PLCs are programmable controllers, they are specifically included under heading 8537, HTSUS.

There is no corresponding accessory provision to heading 8537, HTSUS. Therefore, we must consult other HTSUS provisions which might specifically describe the "ROTODAT" under the HTSUS. After an extensive analysis of the HTSUS, we were unable to locate an HTSUS provision which specifically describes the "ROTODAT". Consequently, it is our position that the "ROTODAT" is classifiable under subheading 8543.80.95, HTSUS.

HOLDING:

The "ROTODAT" is classifiable under subheading 8543.80.95, HTSUS, as an other electrical apparatus, not specified or included elsewhere in chapter 85, HTSUS.

Goods classifiable under this provision and originating in Hungary, upon meeting the requirements of sections 10.173 - 10.178, Customs Regulations (19 CFR 10.173 - 10.178), are eligible for duty-free treatment under the Generalized System of Preferences (GSP).

Sincerely,

John Durant, Director