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HQ 957026



February 7, 1995
CLA-2 CO:R:C:M 957026 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.80.00

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Protest 1001-94-104233; cable/pipe fault finders and locators; 8543.80.90; other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; Note 1(m), Section XVI; EN 85.43; NY 899887; NY 881489; other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter

Dear Regional Commissioner:

This is in regards to Protest 1001-94-104233, concerning the tariff classification of cable/pipe fault finders and locators under the Harmonized Tariff Schedule of the United States (HTSUS). Additional information contained in letters dated September 13, and December 21, 1994, in a facsimile dated December 6, 1994, and in a telephone conversation with a member of my staff on February 3, 1995, were taken into consideration in rendering this decision.

FACTS:

The cable/pipe fault finders and locators under consideration are the RD400 series pipe/cable locators and the RD400FFL fault finders. The pipe/cable locators are designed to pinpoint the location of underground pipes or cables and are used by utilities and construction companies to determine the location of pipes and cables upon which work will be performed, to avoid damaging buried pipes and cables while working in the vicinity, and to determine the location of pipes and cables that were not properly mapped or over which the landscape has changed. The cable/pipe locators are capable of detecting the cable/pipe in the ground and determining the depth of the detected cable/pipe. The fault finders are designed to locate rifts, fissures or other breaks in buried cable/pipe.

The entries of the cable/pipe fault finders and locator were liquidated starting on March 18, 1994, under subheading 9031.80.00, HTSUS, as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. In a protest timely filed on June 16, 1994, the protestant claims that the cable/pipe fault finders and locator are properly classified under subheading 8543.80.90, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.

The competing subheadings are as follows:

8543.80.90 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and apparatus...Other....

9031.80.00 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof...Other instruments, appliances and machines....

ISSUE:

Are the cable/pipe fault finders and locators classified under subheading 8543.80.90, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter, or under subheading 9031.80.00, HTSUS, as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

Protestant contends that the cable/pipe fault finders and locators are classifiable under subheading 8543.80.90, HTSUS. Subheading 8543.80.90, HTSUS, falls within Section XVI, HTSUS, making the Section XVI notes applicable to this classification. Note 1(m), Section XVI, HTSUS, excludes "Articles of Chapter 90" from classification within Section XVI, HTSUS. Accordingly, if the merchandise is classifiable in Chapter 90, HTSUS, classification under subheading 8543.80.90, HTSUS, is precluded.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 85.43 (pgs. 1401-1403) states that:

This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90 (emphasis in original).

We note that EN 85.43 states "[t]he heading includes, inter alia:..

(3) Mine detectors based on the change of magnetic flux produced in the apparatus when brought near to a metal object. Similar detectors are used, for example, for detecting foreign metallic bodies in casks of tobacco, food products, timber, etc., and for locating buried pipe...(emphasis in original)."

Based on Note 1(m), Section XVI, HTSUS, and EN 85.43, electrical machines and apparatus used to locate buried pipe are classifiable under heading 8543, HTSUS, provided they are not more specifically classified in another chapter of the Nomenclature, i.e., Chapter 90, HTSUS..

Customs has classified other pipe and cable locating systems under subheading 9031.80.00, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter. In New York (NY) 899887 dated July 25, 1994, a micro excavation device which measures length, angles and other geometrical quantities to locate underground fiber optic cables was classified under subheading 9031.80.00, HTSUS. Additionally, NY 881489 dated January 22, 1993, classified a cable location system designed to trace concealed wires and pipes which could also detect the location of faults in the wires or pipes under subheading 9031.80.00, HTSUS.

The cable/pipe locators under consideration are designed to detect cable/pipe in the ground and also provide a depth measurement to pinpoint the location of the cable/pipe. The cable/pipe fault finders detect cable/pipe in the ground and also provide the location of the fault within the cable/pipe. The cable/pipe fault finders and locators are similar to the pipe and cable locating systems in NY 899887 and NY 881489 because they can detect cable/pipe and pinpoint depth measurement or locate the exact position of a fault. Based on the cable/pipe fault finders and locators capability of detecting the exact location of buried cable/pipe and detecting the location of a fault in the cable/pipe, we are of the opinion that they are more specifically classified under subheading 9031.80.00, HTSUS, as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter. Therefore, the cable/pipe fault finders and locators are excluded from classification under subheading 8543.80.90, HTSUS, as other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter.

HOLDING:

The cable/pipe fault finders and locators are classified under subheading 9031.80.00, HTSUS, as other measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter.

The protest should be DENIED. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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