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HQ 959833




May 23, 1997

CLA-2 RR:TC:MM 959833 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8517.80.10

Mr. Tony R. Sequeira
Airschott, Inc.
P.O. Box 17373
Washington, D.C. 20041

RE: Reconsideration of NY 815803; Autodialer; Explanatory Notes 85.17 and 85.31;
HQs 084742, 087911, and 088605; NY 803802; Additional U.S. Rule of
Interpretation 1(a); Hartz Mountain Corp. v. U.S.; 8531.80.80

Dear Mr. Sequeira:

This is in response to your letter of April 25, 1996, on behalf of Ice Components, Inc., requesting reconsideration of NY 815803, dated December 5, 1995, concerning the classification of an autodialer under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of an autodialer, which is a programmable electronic device generating touch-tone dialing sequences. The autodialer is capable of storing two touch-tone telephone number sequences of up to sixteen digits each. It is imported in an unprogrammed state, and a special programmed unit is required to render the device operable. The autodialer is powered by a 3 volt lithium-manganese dioxide button cell with a 155 milliampere-hour capacity. In addition, the autodialer contains a die-mounted integrated circuit, two capacitors, one resonator, one transistor, and one speaker mounted to a single Mylar circuit board with gold-plated contacts. All components are contained within a single plastic shell possessing an adhesive Mylar back cover.

ISSUE:

Whether the autodialer is classifiable under subheading 8517.80.10, HTSUS, as other telephonic apparatus, or under subheading 8531.80.80, HTSUS, as other electric sound signaling apparatus.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The subheadings under consideration are as follows:

8517.80.10: [e]lectrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunication apparatus for carrier-current line systems or for digital line systems; videophones; parts thereof: [o]ther apparatus: [t]elephonic.

The general, column one rate of duty for goods classifiable under this provision is 8.5 percent ad valorem.

8531.80.80: [e]lectric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; parts thereof:
[o]ther apparatus: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 1.9 percent ad valorem.

In NY 815803, Customs held the autodialer to be classifiable under subheading 8517.81.00, HTSUS (the 1995 predecessor to subheading 8517.80.10, HTSUS). You claim that the autodialer should be classifiable under subheading 8531.80.80, HTSUS. However, you do not provide any basis for such a position.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 85.17 (p. 1472) states that:

[t]he term "electrical apparatus for line telephony or line telegraphy" means apparatus for the transmission between two points of speech or other sounds
(or of symbols representing written messages, images or other data), by variation of an electric current or of an optical wave flowing in a metallic or dielectric
(copper, optical fibres, combination cable, etc.) circuit connecting the transmitting station to the receiving station.

The heading covers all such electrical apparatus designed for this purpose, including the special apparatus used for carrier-current line systems.

The autodialer meets the terms of "electrical apparatus for line telephony" as defined above. It is our understanding that the autodialer is used to transmit a telephone number to central switching equipment, which in turn establishes a connection based upon the information received. The tone information from the autodialer will be converted from sound waves to an analogue signal. If digital equipment is being utilized, the analogue signal will be converted into a digital signal. The autodialer is used to connect a transmitting station to a receiving station. Therefore, it is described under subheading 8517.80.10, HTSUS. See HQ 084742, dated September 12, 1989, HQ 087911, dated February 4, 1991, HQ 088605, dated February 27, 1991, and NY 803802, dated November 18, 1994, in which Customs held merchandise with similar autodialing capabilities to be classifiable under subheading 8517.81.00, HTSUS.

We must now determine whether the autodialer is classifiable under subheading 8531.80.80, HTSUS. In part, Explanatory Note 85.31 (p. 1496) states that:

[w]ith the exception of signalling apparatus used on cycles or motor vehicles
(heading 85.12) and that for traffic control on roads, railways, etc. (heading 85.30), this heading covers all electrical apparatus used for signalling purposes, whether using sound for the transmission of the signal (bells, buzzers, hooters, etc.) or using visual indication (lamps, flaps, illuminated numbers, etc.) and whether operated by hand (e.g., door bells) or automatically (e.g., burglar alarms).

Additional U.S. rule of interpretation 1(a), HTSUS, states that:

[i]n the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

The U.S. Court of International Trade (CIT) has established various factors, which are indicative but not conclusive, to apply when determining principal use within a particular class or kind. These factors include: (1) the use, if any, in the same manner as the merchandise which defines the class; (2) the expectations of the purchasers of the merchandise; (3) the channels of trade in which the merchandise moves; and (4) the environment of the sale of the merchandise, i.e. the accompanying accessories and the manner in which the merchandise is advertised and displayed. Hartz Mountain Corp. v. U.S., 903 F.Supp. 57, 59, CIT Slip Op. 95-154 (Sept. 1, 1995).

The principal use of the goods of heading 8531, HTSUS, a use provision, is to warn or advise when an event or condition occurs. These goods include electric bells and sirens, indicator panels, and burglar or fire alarms. The principal use of the autodialer is not similar to the principal use of the goods of heading 8531, HTSUS, and therefore the autodialer is not included in the same class or kind as those goods. Therefore, we find that the autodialer is not described under subheading 8531.80.80, HTSUS.

Because the autodialer is not more specifically described under any other provision in the HTSUS, it is classifiable under subheading 8517.80.10, HTSUS.

HOLDING:

The autodialer is classifiable under subheading 8517.80.10, HTSUS, as other telephonic apparatus.

EFFECT ON OTHER RULINGS:

NY 815803 is affirmed in full.

Sincerely,

John Durant, Director
Tariff Classification

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