CLA-2 OT:RR:CTF:VS H219345 HkP
Port Director
Port of Otay Mesa
U.S. Customs and Border Protection
9777 Via de la Amistad
San Diego, CA 92154
RE: Application for Further Review of Protest 2507-12-100001; Interface Test Adapter Test Box
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2507-12-100001, timely filed on April 13, 2012, by Honeywell International Inc., (“Honeywell”). At issue is the classification of an Interface Test Adapter (“ITA”) Test Box under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
According to the information submitted, the ITA Test Box is used in the testing of electronic circuit cards. The ITA Test Box is a component of a Motor Controller Acceptance Test Equipment (MCATE) station, a computer-controlled test bench comprised of instruments that acquire, measure, test and analyze the signals used to certify the circuit cards. Composed of contactors, wiring and connectors, the ITA Test Box generates a test signal at the command of the MCATE that is used to validate the DSP (digital signal processing), AC (alternating current), input, and inverter functionalities of the circuit card inserted into the Test Box. The circuit card then sends a feedback signal to the MCATE via the ITA Test Box. Software logic in the MCATE determines if the circuit card meets pass/fail test parameters. The ITA Test Box does not itself have measuring or testing capability.
Honeywell entered the ITA Test Box on February 18, 2011, classified under subheading 9031.90, HTSUS, as a part or accessory of a measuring or checking instrument not specified or included elsewhere in Chapter 90, HTSUS. By Notice of Action (CBP Form 29) dated November 3, 2011, U.S. Customs and Border Protection (“CBP”) proposed to reclassify the merchandise under heading 8537, HTSUS, which provides for, inter alia, boards, panels, and consoles for the electrical control or distribution of electricity. The entry was liquidated as proposed on December 16, 2011. On April 13, 2012, the importer protested the Port’s action.
ISSUE:
What is the correct classification of the ITA Test Box under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after February 6, 2009. AFR of Protest No. 2507-12-100001 is properly accorded to Honeywell pursuant to 19 C.F.R. § 174.24(a) because the decision being protested is alleged to be inconsistent with the rulings of the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise. Specifically, the importer alleges that the Port’s decision is inconsistent with Headquarters Ruling Letters (“HQ”) H089391 (Feb. 6, 1992), and HQ H009364 (Feb. 23, 2009).
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 or legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2011 HTSUS provisions under consideration are as follows:
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 a voltage not exceeding 1,000V:
8537.10.90 Other …..
9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof:
Other instruments and apparatus, for measuring or checking voltage, current, resistance or power:
9030.33.00 Other, without a recording device……..
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
9031.80 Other instruments, appliances and machines:
9031.90 Parts and accessories:
Other:
9031.90.90 Other…..
Note 1(m) to Section XVI, HTSUS, in which Chapter 85 is located, provides: “This section does not cover …. [a]rticles of chapter 90.” In accordance with Note 1(m) to Section XVI, HTSUS, the ITA Test Box must be excluded from Chapter 90, HTSUS, before consideration can be given to classification within Section XVI.
Honeywell entered the ITA Test Box under heading 9031, HTSUS, which provides for, among other things, “measuring or checking instruments, appliances and machines” not included elsewhere in chapter 90 and “parts and accessories thereof”. The term “checking” is not defined in the HTSUS. Relying on the common meaning of the term, the U.S. Court of Customs and Patent Appeals (CCPA) (predecessor to the U.S. Court of Appeals for the Federal Circuit) defined the term “check” as, “to inspect and ascertain the condition of [a thing].” United States v. Corning Glass Works, 66 CCPA 25, 27 (1978) (citing Webster’s Third New International Dictionary 381 (1971)). The CCPA further stated that “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Id. at 25. In keeping with this decision, CBP has consistently found that equipment that is principally used in the process of measuring or checking is classifiable under heading 9031, HTSUS, even if it does not actually perform the measuring or checking operation itself, provided the other terms of the heading are met. See e.g., HQ 089391 (Feb. 6, 1992), HQ H009364 (Nov. 23, 2009), and HQ H154035 (Mar. 1, 2012).
Based on a command received from the MCATE station, the ITA Test Box generates a signal that it sends to the circuit card inserted into the Test Box. If the circuit card is working properly, the card generates a feedback signal that it sends to the MCATE station via the ITA Test Box. Relying on the signal that it receives from the ITA Test Box, MCATE software determines if the card being tested meets test parameters. Based on this description of the function of the ITA Test Box, we find that it meets the definition of a checking instrument because it is used to check whether a circuit card is working properly. However we disagree that the ITA Test Box is classified in heading 9031, HTSUS, because it is covered by the scope of heading 9030, HTSUS, which provides for among other things, “other instruments and apparatus for measuring or checking electrical quantities”.
The Interface Test Adapter (ITA) Test Box acts as the interface in a process for checking and ascertaining the condition of electrical quantities in electronic circuit cards. While it does not have any measuring or testing capability itself, it does act as an electrical interface between the MCATE and the articles being tested, i.e., electronic circuit cards. Thus, it is classified in heading 9030, HTSUS. Because it is provided for elsewhere in Chapter 90, HTSUS, it is not within the scope of heading 9031, HTSUS. Accordingly, we find that the ITA Test Box is classified under heading 9030, HTSUS, as a checking instrument and is specifically provided for under subheading 9030.33.00, HTSUS, as an “other” instrument, appliance and machine. Because the ITA Test Box meets the definition of “checking instrument”, as provided by the Court in Corning Glass Works, there is no need to address the importer’s argument concerning classification as a part of a checking instrument.
Because the ITA Test Box is properly classified under heading 9030, HTSUS, it is precluded from classification under heading 8537, HTSUS, which is located in Section XVI, HTSUS, by application of Note 1(m) to Section XVI.
HOLDING:
The ITA Test Box is properly classified under heading 9030, HTSUS. It is specifically provided for under subheading 9030.33.00, HTSUS, which provides for: “Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof: Other instruments and apparatus, for measuring or checking voltage, current, resistance or power: Other, without a recording device……..” The column one general rate of duty at the time of entry was 1.7% ad valorem.
Since reclassification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full. You are to mail this decision, together with CBP Form 19 to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings, Office of International Trade, will make the decision available to CBP personnel and to the public on the CBP Home Page at www.cbp.gov, by means of the Freedom of Information Act and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division