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HQ 963272




December 15, 2000

CLA-2 RR:CR:GC 963272 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 9030.39.0040

Port Director
U.S. Customs Service
1000 2nd Avenue
Seattle, WA 98104-1049

RE: Protest 3001-99-100381; light bulb testers

Dear Port Director:

The following is our decision regarding protest 3001-99-100381, dated July 22, 1999, filed on behalf of Ace Hardware Corporation, against your classification of light bulb testers as other electric machines not specified or elsewhere included in Chapter 85 under subheading 8543.89.9695 of the Harmonized Tariff Schedule of the United States (HTSUS). A sample and photocopies of a catalog were provided for our consideration.

FACTS:

Counsel for the protestant states that the products, light bulb testers (model no. 9803560), are used to determine “whether light bulbs and light plugs are in working condition.” Counsel further alleges that the article:

. . . is an important tool because for many older models of strings of lights (for Christmas trees, etc.), when a single plug or bulb malfunctions, the entire string of lights will not work. The tester enables the user to quickly locate the malfunctioning plug or bulb.

The light tester performs three functions: plug tester, bulb tip tester and bulb wire tester. The article indicates by a flashing LED light whether a bulb or plug is faulty. Instructions provided with the article direct the user to further investigate and determine whether a bulb or plug is inoperative after the tester so indicates.

The articles were entered on June 12, 1998, and the entries were liquidated on April 23, 1999. The protest was filed on July 22, 1999. The products were classified at liquidation under subheading 8543.89.9695, HTSUS.

ISSUE:

Whether the light testers are classifiable under subheading 8543.89.96, HTSUS, as other electric machines not specified or elsewhere included in Chapter 85, or under subheading 9030.39.00, HTSUS, as other instruments and apparatus, for measuring or checking voltage, current, resistance or power, without a recording device: other, or under subheading 9030.89.00, HTSUS, as other instruments and apparatus for measuring or checking electrical quantities, other?

LAW and ANALYSIS:

Initially we note that the protest was timely filed and the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRIs). 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[.]”

The HTSUS headings and subheadings under consideration are as follows:

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus:
Other:
Other:
Other:
8543.89.96 Other.

9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof:
Other instruments and apparatus, for measuring or checking voltage, current, resistance or power, without a recording device: 9030.39.00 Other:
9030.39.00.40 For measuring or checking voltage, current or resistance: Other instruments and apparatus:
9030.89.00 Other.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs,
while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 8543 provides, in pertinent part, for “electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter[.]” The ENs to heading 8543, HTSUS, provide, in pertinent part, 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 added].

Thus, if the light testers are provided for by another heading within the HTSUS, classification under heading 8543 is precluded. Further, we note that articles of Chapter 90 are excluded from classification in Chapter 85 by virtue of Note 1(m) to Section XVI.

Heading 9030 provides for “oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities...other instruments and apparatus, for measuring or checking voltage, current, resistance or power, without a recording device” [emphasis added]. The ENs to heading 9030 contemplate, among other things, articles that check (perceive and identify) the presence of electricity and the viability of electrical circuits. The Court in United States v. Corning Glass Works, 66 CCPA 25, 27, 586 F. 2d 822, 825 (1978), quoting Webster's Third New International Dictionary, 381 (1971) stated: "Check" is defined as "to inspect and ascertain the condition of esp. to determine that the condition is satisfactory: * * * investigate and ensure accuracy, authenticity, reliability, safety or satisfactory performance of * * *: to investigate and make sure about conditions or circumstances * * *." The light tester at issue checks the viability of electrical circuits in light bulbs. This function inclines us to believe that heading 9030 best describes the light testers at issue.

Heading 9030, HTSUS, refers to “other instruments and apparatus . . . for . . . checking voltage, current, resistance or power,” making an enumeration of specific things followed by a general word or phrase. “The general word or phrase is held to refer things of the same kind as those specified.” Sports Graphics, Inc. v. United States, 24 Fed. 3d 1390, 1392 (Fed. Cir. 1994). We find that the light testers are ejusdem generis with the “of measuring, checking or automatically controlling instruments and apparatus, whether or not optical or electrical” described in the Section Notes, heading and EN to heading 9030. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, of the same class or kind, teaches that “where particular words of description are followed by general terms,
the latter will be regarded as referring to things of a like class with those particularly described.” NisshoIwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). The CIT further stated that “[a]s applicable to customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Nissho, p. 157.

The ENs to heading 9030 provide, in pertinent part, that:

Some electrical measuring instruments can be used for many purposes, for example, electrical or electronic instruments known as “universal testers” (e.g., multimeters) which serve for the rapid measurement of voltages (direct or alternating), currents (direct or alternating), resistances and capacitances. The main types of electrical measurements are:

(I) Measurement of electric currents. This is carried out, in particular, by means of galvanometers or amperemeters (ammeters).

(II) Voltage measurement, by voltmeters, potentiometers, electrometers, etc. The electrometers used for measuring very high voltages are electrostatic; they differ from the usual type of voltmeter in that they are fitted with spheres or plates held on insulating pillars.

(III) Measurement of resistance and conductivity, by means of ohmmeters or measuring bridges, in particular.

(IV) Measurement of power by means of wattmeters.

The McGraw-Hill Scientific and Technical Encyclopedia, under the headings indicated below, provides the following definitions of the devices described in the EN to heading 9030:

An ammeter measures the flow of current by converting electrical energy to mechanical energy.

The voltmeter is a device that converts electrical energy to physical energy in order to measure the electrical potential in volts. Most voltmeters are classical GALVANOMETERS that have been modified to measure the potential rather than the current. If a suitable resistor is placed in the circuit in parallel with the meter, the voltage can be determined as a product of the resistance value times the current; the meter can thus be calibrated directly in volts. In order to measure the voltage of alternating current, a rectifier must be provided, which is a device that converts alternating current into direct current. Voltmeters are essential to electricians, scientists, and industrial workers. One basic meter movement is often used to measure volts, amperes, and resistance in ohms by
providing suitable resistors and switches, and a small standard electrical source. Such a combination is called a multimeter or a Volt-Milliammeter (VOM).

A galvanometer is an instrument that measures the amount of electrical current by converting electrical energy into the physical displacement of a coil, which in turn moves a pointer or light beam. In a galvanometer, a coil of fine wire is suspended between the poles of a permanent magnet, so that when the coil is magnetized as current passes through it, the like poles of magnet and coil repel each other and cause an attached pointer to deflect across a calibrated scale. When a light beam is used instead of a pointer, a mirror is mounted on the side of the moving coil and a fixed beam of light is directed at the mirror. As the coil turns, the reflected image of the light moves along a translucent, calibrated panel. The coil may be mounted on a spindle, whose ends turn on rubies or very hard steel. The direct-current ammeter is a type of calibrated galvanometer that measures larger currents; a calibrated galvanometer may also be used as a direct-current voltmeter, which measures direct voltage using Ohm's law. Galvanometers are currently being replaced by modern digital instruments.

While certain electrical phenomena such as the photoelectric effect allow for direct measurement of an emitted electric current, other electrical measurements are performed with the aid of an external current or voltage source, so that the resistance, self-inductance, or capacitance can be determined. These measurements are in the end also based on determining the current intensity or voltage. They are performed chiefly with a WHEATSTONE BRIDGE, a circuit that requires a current source, a number of comparison resistances, and a calibrated POTENTIOMETER. The measurement is based on a null measurement of the voltage between two tapping points.

The subheadings within heading 9030 contain reference to “[o]ther instruments and apparatus, for measuring or checking voltage, current, resistance or power, without a recording device, other, for measuring or checking voltage, current or resistance” - articles we find to be substantially similar to the light testers in question. Further, the ENs provide that “instruments and apparatus for measuring or checking electrical quantities may be indicating or recording types.” The light tester at issue indicates whether a light bulb is functional. (See Simmon Omega, Inc. v. United States, 83 Cust. Ct. 14, C.D. 4815 (1979), for the fundamental longstanding tariff classification principle that Congress did not intend to foreclose the classification of future innovations and technological advancements in tariff provisions. To hold otherwise would result in the classification of any and every new product in the basket provisions of the nomenclature, a result that was specifically targeted for elimination under the HTSUS.) Accordingly, we find that the light testers under consideration are sufficiently similar to the articles provided for in heading 9030, HTSUS, as to be classifiable in that heading, and to preclude classification in heading 8543, HTSUS.

GRI 6 provides in pertinent part that “the classification of goods in the
subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.”

Consideration of the subheadings within heading 9030 reveal that subheading 9030.39 best describes the articles at issue.

This determination comports with prior rulings of this office. In New York Ruling Letters (NY) 881920, dated January 25, 1993, a battery tester was classified under subheading 9030.39.0040, HTSUS; D87008, dated February 3, 1999, the circuit tester contained in an automotive repair kit was classified under subheading 9030.39.0080; E82946, dated June 17, 1999, electromagnetic compatibility (EMC) testers were classified under subheading 9030.89.00, HTSUS; F82289, dated February 11, 2000, a voltage tester was classified under subheading 9030.39.00; and in Headquarters Ruling Letter (HQ) 958898, dated May 14, 1996 a “hi test rope tester” was held to be classifiable in subheading 9030.39.00, HTSUS.

HOLDING:

The light testers are classifiable in subheading 9030.39.00, HTSUS, which provides for other instruments and apparatus, for measuring or checking voltage, current, resistance or power, without a recording device, other, other, other.

The protest is GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with Customs Form 19, should be mailed by your office to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of this decision. Sixty (60) 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 the public via the Diskette Subscription Service, the World Wide Web at www.customs.treas.gov, and other public access channels.

Sincerely,

John Durant, Director

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