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