HQ 0950892 - Request for clarification of HRL 088316, HRL 087932 and HRL 088486; belts and belting; Note 1(a), Section XVI; Notes 1(a) and 2(b) Chapter 90; General Explanatory Notes, Section XVI, Chapter 90; interpretation of parenthetical references. - United States International Trade Commision Rulings

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HQ 950892

May 13, 1992

CLA-2 CO:R:C:T 950892 CRS

CATEGORY: CLASSIFICATION

Area Director
New York Seaport
6 World Trade Center
Room 423
New York, NY 10048

RE: Request for clarification of HRL 088316, HRL 087932 and HRL 088486; belts and belting; Note 1(a), Section XVI; Notes 1(a) and 2(b) Chapter 90; General Explanatory Notes, Section XVI, Chapter 90; interpretation of parenthetical references.

Dear Ms. Maguire:

This is in response to a memorandum dated December 18, 1991, from the Chief, National Import Specialist Branch 1, requesting clarification of Headquarters Ruling Letter (HRL) 087932 of July 8, 1991, HRL 088316 of July 12, 1991, and HRL 088486 of February 6, 1991. Our decision follows below.

FACTS:

HRL 087932 classified a photocopier machine document feed belt in heading 9009, HTSUSA. Similarly, HRL 088316 classified a photocopier document conveyance belt in heading 9009. The crux of these decisions was that the parentheticals references to Note 1(a), Chapter 90, HTSUSA, which exclude certain articles from classification in Chapter 90 (including articles of vulcanized rubber other than hard rubber of heading 4016 and "textile material" of heading 5911), were limited in scope. In HRL 087932 we concluded:

Although the language preceding the parenthetical reference to heading 5911 does not mimic the terms of heading 5911 itself, we do not find this persuasive of any broad intent to exclude all textiles from Chapter 90. Having consulted the Harmonized System Committee, and construing the tariff as a whole, in Customs' opinion, Note 1(a) is limited in scope to the three headings cited therein....

Consequently, since Note 1(a) was deemed not to apply, a rubber document conveyance belt (HRL 088316) and a textile document feed belts (HRL 087932) were classified in heading 9009 pursuant to Note 2(b), Chapter 90, which directs that, subject to the provisions of Note 1, parts and accessories suitable for use solely or principally with a particular kind of machine are to be classified with the machines of that kind.

HRL 088486 concerned the classification of fork-lift truck parts, including an air intake hose. There we stated with regard to the parentheticals references contained in Note 1(a), Section XVI, HTSUSA, which exclude, inter alia, articles of heading 4016 from classification in Section XVI:

We interpret this parenthetical [to heading 4016] as being for reference purposes only and therefore noninclusive, such that articles of heading 4009 are covered as well.

This view was based on General Explanatory Note I(B)(a), Section XVI, which indicates that the scope of Note 1(a), Section XVI, is broader than a plain reading would otherwise suggest. Thus under the analysis of HRL 088486 Note 1(a), Section XVI, operates to exclude articles of heading 4009, as well as articles of those headings expressly referenced.

Your December 18 memorandum contends that the view expressed in HRL 087932 and HRL 088316, viz., that the parentheticals of Note 1(a), Chapter 90, are restrictive and thus limited in scope to the headings expressly cited therein, is inconsistent with the view in HRL 088486 that the parentheticals of Section XVI are simply for reference purposes. Accordingly, you have asked for clarification of these rulings.

ISSUE:

The issues presented are: (1) whether the holding in HRL 087932 is inconsistent with the holding in HRL 088486; and (2) whether the parenthetical references in the legal notes to the HTSUSA are to be interpreted liberally or restrictively.

LAW AND ANALYSIS:

The three rulings in question concern different legal notes. HRL 087932 and HRL 088316 involve the construction of Notes 1(a) and 2(b), Chapter 90, Section XVIII, HTSUSA; in contrast, HRL 088486 concerns the interpretation of Note 1(a), Section XVI, HTSUSA.

These notes pertain to different chapters and sections of the tariff. Nevertheless, because the parenthetical references contained in the legal notes cited above have been interpreted differently, it has been argued that the rulings cited above are in conflict. We do not agree.

Note 1(a), Section XVI

Note 1(a), Section XVI, HTSUSA, excludes the following from Section XVI:

Transmission or conveyor belts or belting, of plastics of Chapter 39 or of vulcanized rubber (heading No. 40.10); or other articles of a kind used in machinery or mechanical or electrical appliances or for other technical uses, of vulcanized rubber other than hard rubber (heading 4016).

In HRL 088486 the parenthetical references of Note 1(a), Section XVI, were liberally interpreted in view of the language of General Explanatory Note (I)(B)(a), Section XVIII, which states that Section XVI does not cover:

Transmission or conveyor belts or belting, of plastics (Chapter 39); articles of unhardened vulcanized rubber (e.g., transmission or conveyor belts or belting) (heading 40.10), rubber tyres, tubes, etc., (headings 40.11 to 40.13) and washers, etc. (heading 40.16). (Emphasis in original).

General Explanatory Note (I)(B)(a) therefore provides guidance concerning the scope of Note 1(a) by adding, e.g., rubber tyres, tubes, etc., of headings 4011 to 4013 to the list of exclusions. On this basis, we stated in HRL 088486 that the parenthetical of Note 1(a), Section XVI, was for reference purposes only. Accordingly, it was the opinion of this office that the intent of the drafters of the Harmonized System was to extend the exclusionary reach of Note 1(a) to encompass articles of heading 4009.

Note 1(a), Chapter 90

In contrast, the General Explanatory Note, Chapter 90 (there are no Explanatory Notes to Section XVIII), does not broaden the plain language of Note 1(a), Chapter 90. In fact, quite the opposite, it supports a restrictive view of the parentheticals to Note 1(a) by repeating verbatim the language thereto. Subnote (a), 1458.

Since photocopier feed belts are not excluded from Chapter 90 by virtue of Note 1(a), they are classifiable according to Note 2, Chapter 90, which establishes the general rule that parts and accessories identifiable for use solely or principally with machines of Chapter 90 are to be classified with the machines of that kind. However, certain additional exclusions are provided for in Note 2(a). These are also examined in the Chapter 90 General Explanatory Note which provides that the general rule regarding parts and accessories does not apply to:

(1) Parts and accessories which in themselves constitute articles falling in any particular heading of this Chapter or of Chapter 84, 85 or 91 (other than the residual heading 84.85, 85.48 or 90.33. (sic) For example, a vacuum pump for an electron microscope remains a pump of heading 84.14; transformers, electro-magnets, capacitors, resistors, relays, lamps, or valves, etc., remain classified in Chapter 85; the optical elements of heading 90.01 or 90.02 remain in the headings cited regardless of the instruments or apparatus to which they are to be fitted; a clock or watch movement is always classified in Chapter 91; a photographic camera falls in heading 90.06 even if it is of a kind designed for use with another instrument (microscope, stroboscope, etc.).

(2) Parts or accessories suitable for use with several categories of machines, appliances, instruments or apparatus falling in different headings of this Chapter are classified in heading 90.33, unless they are in themselves complete instruments, etc., specified in another heading (see paragraph (1) above). (Emphasis in original).

Thus, whereas the General Explanatory to Section XVI provides guidance concerning the scope of Note 1(a), Section XVI, by adding articles of headings 4011 to 4013 to the list of exclusions, the General Explanatory Note to Chapter 90 does not affect the plain language of Note 2, Chapter 90. Furthermore, although the drafters of the Harmonized System could have excluded document feed belts from Chapter 90, as they did, e.g., articles of heading 5911, or vacuum pumps for electron microscopes, they chose not to exempt feed belts from the general rule of Note 2, Chapter 90. Since the parenthetical references of Note 1(a), Chapter 90 are limited in scope, and do not exclude articles of headings 4010 and 5910, it was therefore the opinion of this office, as well as of the HSC Secretariat, that Note 2(b) controlled, and that articles of headings 4010 and 5910 identifiable as parts and accessories of machines of Chapter 90, are classifiable with those machines, as warranted by the specific merchandise.

Summary

This sets up the anomalous result that some articles, e.g., conveyor or transmission belts or belting of heading 4010, are classifiable as parts and accessories of machinery if subject to Note 2, Chapter 90, but in the eo nomine provision for belts or belting, i.e., heading 4010, if parts and accessories of articles of Section XVI. Nevertheless, Headquarters considers this result to be warranted by the difference in the language of the relevant Explanatory Notes. Accordingly, we do not find there to be any inconsistency between HRLs 087932, 088486 and 088316.

HOLDING:

Pursuant to the foregoing, HRL 087932, HRL 088486 and HRL 088316 are affirmed.

This decision will be made available to the public through the Electronic Bulletin Board as well as via Customs' diskette service. In addition, please ensure that the appropriate field offices are made aware of this ruling.

Sincerely,

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