CLA-2 OT:RR:CTF:TCM W967696 RSD
TARIFF NO: 8471.80.1000
Ms. Kim Hostrom
9911 Willows Road, N.E.
Redmond, Washington 98052
RE: Reconsideration of NY L81751 and NY L82985; Classification of Certain KVM Switches that are Used with ADP networks
Dear Ms. Hostrom:
This is in response to a request for reconsideration of two rulings, NY L81751 dated January 20, 2005 and NY L82985 dated February 16, 2005, submitted by counsel on behalf of Avocent Corporation (Avocent) concerning the classification of certain KVM switches used with automatic data processing (ADP) system. On May 6, 2005, Counsel submitted the request for reconsideration. On September 13, 2006, a meeting was held at our offices with counsel, employees of Avocent, and members of my staff to discuss this matter.
Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057 2186 (1993), a notice of the proposed revocation of the above cited rulings was published in the Customs Bulletin, Volume 41, No. 18, on April 25, 2007. No comments were received in response to this notice.
The merchandise that was under consideration in NY L81751 was the Dell KVM (keyboard, video, and mouse) Console Switch. In NY L82985, Customs and Border Protection (CBP) ruled on the classification of the Dell Embedded KVM Console Switch.
According to the facts stated in NY L81751, the Dell KVM Console Switch is a rack mounted solid-state electronic device that will be utilized by a system administrator. This product consists of a metal housing that measures approximately 17.2 inches wide by 6.5 inches deep and is 1.7 inches high. The KVM console switch will have 1 or 2 local access ports for hooking up to a monitor, keyboard and mouse, and 8 or 16 RJ45 ports for server hookup. There is also an additional RJ45 port for connecting to another KVM unit, and a DB9 interface for delivery of upgrade firmware. The KVM console switch allows the system administrator to view and control several servers through the use of one or two monitors, keyboards and mouse. It utilizes a combination of solid state switching and software to switch the input signals from various servers that are connected to the switch. It switches between ports of the switch.
NY L82985 describes the Dell Embedded KVM Switch as a printed circuit assembly (PCA) in a metal frame. It is intended for internal installation in an Original Equipment Manufacturer (OEM) chassis containing multiple servers. This KVM switch allows a keyboard, monitor and mouse to be connected to and switch between multiple servers. The KVM switch and servers connect into the OEM chassis backplane. The switch uses solid-state switching to switch between the server video signals. It has a connector for the backplane on the back and two connectors, a RJ45 connector for connecting to another unit and a KVM connector on the front.
KVM switches increase the functionality of a network. For example, in a network using the Windows operating system, a person at a single workstation can access files on any other workstation. That person, however, cannot run programs that appear on other workstations, or see another workstation’s desktop monitor. In other words, the KVM switches allow a person at a single control console to perform these tasks, increasing the functionality of the network.
Some common examples of how KVM are switches are used include:
Controlling two computers on different platforms (i.e., a PC and a Mac) with one control console.
Enabling a network administrator to control a large number (up to thousands) of servers from his office and/or the server room; for example, using a KVM switch, the network administrator can boot up all servers from their work station with a single control console.
Allowing a sales person to control a notebook computer using a desktop keyboard, monitor, and mouse.
To achieve the desired functionality, KVM switches must be able to (1) connect (directly or indirectly) to each server or CPU to be accessed and controlled; (2) to accept data from CPUs or servers in coded form; (3) transmit data from the CPUs or servers to the control console in coded form from the control console; (4) accept data in coded form from the control console; and (5) transmit the coded data received from the control console to CPUs or servers in a coded form that is readable by the CPUs or servers. In effect, when the KVM switch is connected to a CPU, the CPU responds just as if the control console was attached directly to the CPU (sending and receiving coded data), and the KVM switch responds in the same fashion as a control console (accepting, encoding, decoding, and transmitting coded data).
There are numerous physical characteristics that KVM switches must possess to achieve the desired functionality, including:
control console ports, which are capable of connecting directly or
indirectly to keyboard, monitor and mouse;
printed circuit boards (including a CPU) that are capable of accepting and converting data received by the console ports from the control console (keyboard, video, and mouse) and transmitting this data in coded form to the CPUs or servers, and receiving data from the CPUs or servers, converting this data in a coded form that can be read by, and transmitted to, the control console; and
server ports, which are capable of connecting directly or indirectly
to CPUs or servers.
Each of these physical elements is contained in a single KVM switch housing, which may be in the form of a separately housed unit (small box), or in the form of a board that is directly placed into (embedded) the ADP or servers by the OEM.
In NY L81751 and NY L82985, CBP held that the Dell KVM Console Switches and Dell KVM Embedded Switches were classified in heading 8537, HTSUS, as: “boards, panels, consoles ... for the electric control or distribution of electricity.”
Whether the Dell KVM Console Switches and Dell Embedded KVM Switches are classified as units of automatic data processing machines in heading 8471, HTSUSA, or in heading 8537, HTSUSA, as: “boards, panels, consoles ... for the electric control or distribution of electricity.”
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:
8471: Automatic data processing machines and units thereof; …:
8471.80: Other units of automatic data processing machines:
8471.80.10: Control or adapter units.
* * *
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 1,000 V:
* * *
Automatic data processing (ADP) machines are defined in Legal Note 5(A) to Chapter 84, HTSUS, which states as follows: For purposes of heading 8471, the expression "automatic data processing machines" means machines capable of: (i) [s]toring the processing program or programs and at least the data immediately necessary for the execution of the program; (ii) [b]eing freely programmed in accordance with the requirements of the user; (iii) [p]erforming
arithmetical computations specified by the user; and, (iv) [e]xecuting, without human intervention, a processing program which requires them to modify their execution, by logical decision during the processing run.
To be classified as an ADP unit under heading 8471, HTSUS, an article must meet the terms of Legal Note 5(C) to Chapter 84, HTSUS, which provides that:
Subject to paragraphs (D) and (E) below, a unit is to be regarded as being a part of an automatic data processing system if it meets all the following conditions:
(i) It is of a kind solely or principally used in
an automatic data processing system;
(ii) It is connectable to the central processing
unit [CPU] either directly or through one or more other
(iii) It is able to accept or deliver data in a
form (codes or signals) which can be used by the
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System at the international level. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 84.71 provides:
Data processing is the handling of information of all kinds, in pre-established logical sequences and for a specific purpose or purposes.
Automatic data processing machines are machines which, by logically interrelated operations performed in accordance with pre-established instructions (program), furnish data which can be used as such or, in some cases, serve in turn as data for other data processing operations.
Accordingly, to determine if the KVM switches should be classified in heading 8471, HTSUS, we must apply the requirements for units of ADP systems that are set forth in Note 5(C) of Chapter 84. First, the information available indicates that the KVM switches are used solely with ADP systems. The purpose of the Dell KVM switches is to allow a single user to access multiple ADP machines or servers from a single control console (keyboard, video or mouse). The products are also sold and marketed solely for use in computer systems.
With respect to the second condition specified in Legal Note 5(C) in Chapter 84, the KVM switches are connected to the CPUs or servers, either directly or through one or more other units. The KVM Console Switch is directly connected to the CPUs or servers through a standard cable, and jack arrangement. A separate dongle is used to connect the server to the switch body. The KVM Embedded Switch contains high-density connectors that plug into the midplane, which acts in the same fashion as the cables.
The third requirement of Legal Note 5(C) in Chapter 84 concerns the accepting or the delivery of data in a form (codes or signals) which can be used by the system. The KVM switches contain OSCAR, keyboard and mouse logic and a CPU with embedded software, which convert the coded data received into a proprietary code. OSCAR stands for On Screen Configuration and Activity Reporting. The OSCAR within the KVM unit contains a custom designed ASIC (Application Specific Integrated Circuit), and works in conjunction with CPU software that runs inside of the unit to generate the OSCAR interface. This
interface works as a graphical menuing system. For example, the OSCAR
in a KVM unit allows the user to configure menu language, color, name attached computers, setup scan lists, and select computers for control.
The synchronizing of data by converting it into a proprietary code is required to ensure the KVM switches achieve their primary purpose to control multiple CPU’s from a single console. In addition, KVM switch products receive data in a proprietary code, convert this code back into a code readable by the CPUs or servers and transmit the data to the CPUs or servers. This means that KVM switches are capable of converting data that are sent and delivered in different types of computer system platforms such as Windows to MAC and vice or versa. Thus, the KVM switches in question deliver and accept data.
Even if a product is able to meet the terms of Legal Note 5(C), classification in heading 8471, HTSUS, may be precluded if Legal Note 5(D) or (E) to chapter 84 is applicable. They provide the following.
D) Heading 8471 does not cover the following when presented separately, even if they meet all of the set forth in note 5(C) above:
Printers, copying machines, facsimile machines, whether or not combined;
Apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network);
Loudspeakers and microphones;
Television cameras, digital cameras and video camera recorders;
Monitors and projectors, not incorporating television reception apparatus.
E) Machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.
Heading 8517, HTSUS provides in relevant part for: “…other apparatus for the transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area
network)…”. Classification under heading 8517 is precluded because the switches are not transmitting or receiving data but controlling data servers by interconnecting the keyboards, monitor, and mouse to different servers.
Legal Note 5(E) to chapter 84, HTSUS, clearly states that machines performing a specific function other than data processing are to be classified in the heading appropriate to those respective functions. Thus, the issue remains as to whether Legal Note 5(E) to Chapter 84, HTSUS, precludes classification of the KVM switches in heading 8471, HTSUS, because they are performing functions other than data processing.
Based on the information presented, we find that Note 5(E) does not exclude the KVM switches from being classified in heading 8471, HTSUS, because they are not performing a specific function other than data processing. The KVM switches’ basic function is to interconnect the keyboard, mouse, and video monitor to different servers in order to control multiple computers and servers from a single control console. This is a data processing function, and thus the KVM switches in question are not precluded from being classified in heading 8471, HTSUS, by Note 5(E). Thus, we find that KVM switches are classified in heading 8471, HTSUS.
Next, we must determine which of the subheadings of heading 8471, HTSUS, that the KVM switches are classified. EN 84.71(I)(B)(3) provides that:
Control and adaptor units such as those to effect interconnection of the central processing unit to input or output units (e.g. USB hubs). However, control and adaptor units or communication in a wired or wireless network (such as a local or wide area network) are excluded (heading 85.17).
This definition provided by the ENs for control and adaptor units describes the KVM switches under consideration that are used to interconnect CPUs with input and out units, such as keyboards, video, and mouse in this case. Therefore, we find that the KVM switches are classified in subheading 8471.80.10, HTSUS, as control or adapter units of ADPs. Accordingly, we find that NY L81751 and NY L8225 should be revoked.
In accordance with GRI 1, and by virtue of Legal Note 5(C) to Chapter 84, HTSUS, the two types of KVM switches, the Dell KVM Console Switch and the Dell KVM Embedded Switch, are classified in heading 8471, HTSUS. They are specifically provided for in subheading 8471.80.1000, HTSUS, as: “Automatic data processing machines and units thereof;…: Other units of automatic data processing machines: Control or adapter units”, at a general, column one rate of duty which is free. Duty rates are provided for requester’s 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 http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY L81751 (issued January 20, 2005) and NY L82985 (issued February 16, 2005) are hereby revoked. This ruling will become effective 60 days after publication in the Customs Bulletin.
Myles B. Harmon, Director Commercial and Trade Facilitation Division