HQ 0081424 - Facsimile telephone toshiba permanent - United States International Trade Commision Rulings

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HQ 081424

October 31, 1988

CLA-2 CO:R:C:G 081424 LS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8517.82.0040

Ms. Marty Langtry
Castelazo & Associates
5420 West 104th Street
Los Angeles, California 90045

RE: Facsimile telephone toshiba permanent

Dear Ms. Langtry:

This is in response to your letter, written on behalf of Toshiba America, Inc., in which you requested a classification ruling on a facsimile machine which includes a telephone.

FACTS:

The facsimile machine is identified in the literature submitted by Toshiba America, Inc. as model TF-111. It is described as a device which offers both telephone and facsimile transmission in a compact, desk-top product. You state that the only difference between this model and the standard facsimile machine is that this model contains a permanently attached telephone with a detachable handset. You further state that the main purpose of the telephone is to contact the operator when it is necessary to do so in order to send a transmission. You have stated in a telephone conversation with the national import specialist that you did not know whether the telephone will be used exclusively with the facsimile machine or whether it will be used for voice communication in addition to its use with the facsimile machine. You have also stated that the TF-111 model is sold as a facsimile machine.

The literature you have submitted describes the TF-111 model as an office-capable facsimile unit which can be programmed with 30 facsimile destinations and 30 pre-set telephone numbers. It features G2 and G3 transmission modes
for compatibility with virtually any facsimile, and a proprietary Toshiba HS high speed transmission mode for communication with other Toshiba facsimile systems. This model also can be programmed for Transmit Terminal Identification (TTI), with the user name and telephone number displayed at the top of each document page. The facsimile will provide a detailed report of the last transactions and an automatic display of transmission, telephone numbers, and operating status. It also has an auto-receive feature for unassisted recording of all incoming messages. Some of the other features of this unit are an automatic document feeder, a digital face, and polling. The latter feature allows this unit to pick up transmission activity and problem messages from another facsimile.

ISSUE:

What are the applicable tariff classification provisions under the Tariff Schedules of the United States Annotated (TSUSA) and the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for the subject facsimile machine, model TF- 111, which includes a telephone?

LAW AND ANALYSIS:

Item 684.66, TSUSA, specifically provides for electrical telegraph apparatus and instruments: other: terminal apparatus. The question presented is whether the subject article is, in character or function, something other than telegraph terminal apparatus, which includes facsimile machines, as described in item 684.66, i.e., whether it is more limited or more diversified. If the difference between the subject article and the article described in item 684.66 is significant, the article cannot be classified in that provision. The subject article would then be considered more than a facsimile machine. However, if the difference is in the nature of an improvement or amplification, and the essential character is preserved or only incidentally altered, the applicable rule is that an unlimited eo nomine statutory designation includes all forms of the article in the absence of a contrary legislative intent or commercial designation. Robert Bosch Corp. v. United States, 63 Cust. Ct. 96, 103-104, C.D. 3881 (1969).

It is necessary, therefore, to determine whether the permanently attached telephone makes the Toshiba model TF-111 "more than" a facsimile machine or whether the telephone serves a function which is incidental, subordinate, or secondary to the function of the facsimile machine. "It is a well settled principle that where merchandise has a single primary function and an incidental, subordinate, or secondary function, it is classifiable on the basis of its primary design, construction, and function." Ashflash Corp. v. United States, 76 Cust. Ct. 112, 115-116, C.D. 4643 (1976). However, where merchandise constitutes more than a particular article or has additional nonsubordinate or coequal functions, it is not classifiable as that article. Id. at 116.

The purpose of the telephone attached to the facsimile machine is to facilitate operation of the facsimile machine. Whether or not the telephone is used exclusively with the facsimile machine or is also used independently for voice communication, we find that the telephone serves a function which is incidental and subordinate to that of the facsimile machine. Its function relates primarily to the function of the facsimile machine. The telephone can be viewed as an added feature which improves the capability of the facsimile machine in an auxiliary manner. Following the standard set forth in Robert Bosch Corp., supra, the article's essential character as a facsimile machine is not altered more than incidentally by the addition of the telephone. Therefore, the subject article is classifiable on the basis of its primary function, i.e., as a facsimile machine. See Trans-Atlantic Co. v. United States, 60 CCPA 100, C.A.D. 1088 (1973); Ashflash Corp., supra. The addition of the telephone does not render the subject article more than a facsimile machine.

The added feature of a telephone built into a facsimile machine is considered to be in the nature of an improvement. It has been held that an eo nomine designation covers all forms of the article subsequently created which fairly come within its scope, including improved models originating since the statutory enactment. See Hoyt, Shepston & Sciaroni, S. Blondheim & Co. v. United States, 52 CCPA 101, 103-104 (1965); A.J. Arango, Inc. v. United States, 1 CIT 271, 274-275 (1981). A technological advancement which allows the incorporation of a telephone into the same unit as a facsimile machine does not preclude the classification of the TF-11 model as a facsimile machine under item 684.66.

In Phone-Mate, Inc. v. United States, Slip Op. 88-79 (Ct. Int'l. Trade, decided June 17, 1988), the Court of International Trade held that a combination telephone and answering machine device was properly classified by Customs under item 684.58, TSUSA, which provides for "telephone sets and other terminal equipment and parts thereof." The court noted that in light of current developments in telecomunica- tions technology, the U.S. International Trade Commission, which drafted the revisions to the Tariff Schedules, considered the term "telephone" to have a broad enough scope to include articles which combine a telephone with other instruments or devices. The court found that "the answering machine serves a secondary function which relates to the predominant use of the article as a means of transmitting and receiving telephonic messages." Slip Op. at 14.

Likewise, we find that the provision for telegraph terminal apparatus, including facsimile machines, item 684.66, includes the Toshiba TF-111 unit which is a facsimile machine with a built-in telephone. The telephone serves a secondary function which relates to the predominant use of the article as a means of transmitting and receiving documents. The applicable duty rate is 4.7 percent ad valorem if the article is imported from a column 1 country.

Under the HTSUSA, General Rule of Interpretation (GRI) 1 provides that classification is determined first according to the terms of the headings and any relative section or chapter notes. Note 3 to Section XVI provides:

Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more comple- mentary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

Applying Note 3, the subject article which performs two complementary functions is classifiable as other telegraphic apparatus under subheading 8517.82.00 because the facsimile is the component of the article which performs the principal function. Subheading 8517.82.00 provides for "Electrical apparatus for line telephony or telegraphy, including such apparatus for carrier-current line systems: Other apparatus: Telegraphic. The duty rate is 4.7 percent ad valorem if the merchandise is imported from a "Column 1 General" country.

HOLDING:

In view of the foregoing, the Toshiba facsimile machine with the built in telephone is classifiable in item 684.66, TSUSA, which provides for electrical telegraph apparatus and instruments: other: terminal apparatus, dutiable at the rate of 4.7 percent ad valorem if imported from a column 1 country. The applicable provision under the HTSUSA is subheading 8517.82.00, which provides for "Electrical apparatus for line telephony or telegraphy, including such apparatus for carrier- current line systems: Other apparatus: Telegraphic." The duty rate for this provision is also 4.7 percent ad valorem if it is imported from a "Column 1 General" country. The classification under the HTSUSA, effective January 1, 1989, is subject to changes made in the HTSUS prior to the effective date.

Sincerely,

John Durant, Director

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