Protest 3901-97-101190; micro scanner; controller; measuring and checking instrument; boards, panels, consoles for electronic control; part; Additional U.S. Rule of Interpretation 1(c); Note 1(m), Section XVI; ENs 85.31; 85.37; ejusdem generis; Sports Graphics, Inc. v. United States; A & A International, Inc. v. United States; United States v. Corning Glass Works; Universal Electronics, Inc. v. United States; Northwest Airlines, Inc. v. United States; HQs 087077; 950218; 957326; 961003; 952869; 954682; 959711; void or voidable reliquidation; 19 U.S.C. 1501

HQ 961186 October 13, 1998 CLA-2 RR:CR:GC 961186 PH CATEGORY: Classification TARIFF NO.: 8537.10.90; 9031.80.00 Port Director of Customs 610 South Canal Street Chicago, IL 60607 RE: Protest 3901-97-101190; micro scanner; controller; measuring and checking instrument; boards, panels, consoles for electronic control; part; Additional U.S. Rule of Interpretation 1(c); Note 1(m), Section XVI; ENs 85.31; 85.37; ejusdem generis; Sports Graphics, Inc. v. United States; A & A International, Inc. v. United States; United States v. Corning Glass Works; Universal Electronics, Inc. v. United States; Northwest Airlines, Inc. v. United States; HQs 087077; 950218; 957326; 961003; 952869; 954682; 959711; void or voidable reliquidation; 19 U.S.C. 1501 Dear Port Director: This is our decision on protest 3901-97-101190, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a "Micro Scanner" and "Controller". Samples were provided for our examination. Consideration was given to the presentation of counsel for the protestant in a meeting with representatives of this office on September 23, 1998, and a follow-up letter from counsel dated September 24, 1998. FACTS: The merchandise is invoiced as Tastkopf BKM 2, BK MIKRO 4, BK MIKRO 5 and Steurgerat BKM 5. According to the importer (in a December 27, 1996, letter responding to a Request for Information from Customs), the "Tastkopf" is a scanner the function of which is to check for the presence or lack of a specific tool on a machine tool that is cutting metal. The scanner is comprised of a servo-motor, encoder, gears, metal wand to check tool location, and a plug connector, all enclosed in a metal tube. The sample is a metal cylinder approximately 4" in length and 1 1/4" in diameter, with a threaded connector on one end and, on the other end, a rotating holder to which a 6" scanning wand is attached. The "Steurgerat" is a controller which controls the function of and receives signals from the scanner. According to the importer in the above-referenced December 27, 1996, letter, "[i]t controls the function of and receives signals from the scanner ...." The controller is comprised of a printed circuit board, controlling hardware, 24 volt inputs and outputs, and indicator panels with lights, enclosed within a plastic case. The sample is a plastic box approximately 4" X 3" X 1 3/4". On the face of the controller are toggle switches which can be set to control the rotation direction (clockwise or counterclockwise), object monitoring (determines whether the signal light refers to finding a tool or not finding a tool), mode of operation (manual or automatic) and deceleration. There are also rotary switches which, when the system is set for the manual mode, determine the scanner’s range of rotation. The toggle and rotary switches are set prior to operation of the scanner. There are three light-emitting diodes on the face of the controller which provide information about the power supply voltage or status, indicate a "fault" message, and indicate a "no fault" message. The merchandise was entered in 17 entries between July and December, 1996, as other electric sound or visual signaling apparatus in subheading 8531.20.00, HTSUS. Except as noted below, the entries were liquidated on January 31 or February 14, 1997, with classification of the controllers as other boards, panels, consoles, desks, cabinets and other bases for the electric control or the distribution of electricity in subheading 8537.10.90, HTSUS, and the scanners as other measuring or checking instruments, appliances and machines not specified or included elsewhere in Chapter 90, HTSUS, in subheading 9031.80.00, HTSUS. In a number of the entries, the above-referenced liquidations were reliquidations under 19 U.S.C. 1501. In the case of two of those entries, dated July 23 and 29, 1996, the reliquidation was more than 90 days after the initial liquidation. The importer’s counsel filed this protest with Customs on April 30, 1997, against the classification of the merchandise. The protestant concedes that the merchandise is not imported as a unit (i.e., it is not classifiable as a functional unit pursuant to Note 4, Section XVI, HTSUS, applicable to Chapter 90, HTSUS, by virtue of Note 3 of that Chapter). Citing Harmonized Commodity Description and Coding System Explanatory Note (EN) 85.31 and Court and Customs rulings defining "signaling apparatus", the protestant contends that the merchandise is classified as electric signaling apparatus in heading 8531, HTSUS. On the basis of the inclusion in EN 85.31 of "indicator panels and the like", the protestant contends that the controller is classified as other signaling apparatus in subheading 8531.80.80, HTSUS. Citing Additional U.S. Rule of Interpretation 1(c), HTSUS, and Court cases and Customs rulings concerning the tariff treatment of "parts", the protestant contends that the scanner is a "part of a system which is a signaling apparatus and, therefore is classified as other parts of electric signaling apparatus in subheading 8531.90.80, HTSUS. The HTSUS subheadings under consideration are as follows: 8531.80.80: Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms) ...; parts thereof: ... Other apparatus: ... Other. The 1996 general column one rate of duty for goods classifiable under this provision is 2.1% ad valorem. 8531.90.80: Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms) ...; parts thereof: ... Parts: ... Other. The 1996 general column one rate of duty for goods classifiable under this provision is 2.1% ad valorem. 8537.10.90: Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of chapter 90, and numerical control apparatus, other than switching apparatus of heading 9517: For a voltage not exceeding 1,000 V: ... Other. The 1996 general column one rate of duty for goods classifiable under this provision is 4.3% ad valorem. 9031.80.00: Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; ... parts and accessories thereof: ... Other instruments, appliances and machines. The 1996 general column one rate of duty for goods classifiable under this provision is 3.6% ad valorem. ISSUE: Whether the scanner and controller are classifiable as other electric sound or visual signaling apparatus in subheading 8531.80.80, HTSUS, other parts of electric sound or visual signaling apparatus in subheading 8531.90.80, HTSUS, boards, panels, consoles for electric control in subheading 8537.10.90, HTSUS, or other measuring or checking instruments in subheading 9031.80.00, HTSUS. LAW AND ANALYSIS: Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)). However, in the case of two of the protested entries (dated July 23 and 29, 1996), the entries were first liquidated as entered and then reliquidated more than 90 days after the date of notice of the initial liquidation. The law and regulations governing reliquidation of liquidations under 19 U.S.C. 1500 (19 U.S.C. 1501; 19 CFR 173.3(a)) require such reliquidations to be within 90 days from the date on which notice of the original liquidation is given. An untimely reliquidation by Customs under 19 U.S.C. 1501 is not void, but rather merely voidable (see Philip Morris v. United States, 13 CIT 556, 716 F. Supp. 1479 (1989) (affirmed in part and reversed in part in an unpublished decision of the Court of Appeals for the Federal Circuit, 8 Fed. Cir. (T) 187, 907 Fed. 2d 158 (1990)), and cases cited therein, including Omni U.S.A., Inc. v. United States, 6 Fed. Cir. (T) 99, 840 F. 2d 912 (1988), cert. den., 488 U.S. 817 (1988), rehearing den., 488 U.S. 961 (1988); see also HQ 222875, dated May 15, 1991). "Neither the legality nor the correctness of a reliquidation by Customs may be disturbed unless a timely protest is filed according to the procedures in 19 U.S.C. 1514 ... and failure to do so within the stated period leaves the reliquidation final" (Philip Morris, supra, 13 CIT at 558). In the case under consideration, the protestant timely protested the February 14, 1997, reliquidations of entries 101-15258468 and 101-115272311 and, therefore, those reliquidations are voided and the protest is granted in regard to those entries. Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI’s), taken in order. GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 8980, published in the Federal Register August 23, 1989 (54 FR 35127, 35128). As stated above, the protestant concedes that the merchandise is not imported as a unit and that the scanner and controller are not classifiable as a "functional unit" pursuant to Note 4, Section XVI, HTSUS. Therefore, the scanner and controller must be individually classified (unless one is classifiable as a "part"; see below). See, e.g., HQs 087077 dated March 27, 1991; 950218 dated April 17, 1992; 957326 dated July 17, 1995; and 961003 dated June 10, 1998. Additional U.S. Rule of Interpretation 1(c) provides: In the absence of special language or context which otherwise requires ... a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory[.] Thus, even if the scanner or controller is solely or principally used as a part of the other (and, because resolution of that issue is unnecessary, we are not addressing whether that is so), if there are specific provisions for the scanner and controller, they may not be classified as parts or accessories. EN 85.31 provides, in part, that: ... [T]his heading covers all electrical apparatus used for signaling purposes, whether using sound for the transmission of the signal ... or using visual indication (lamps, flaps, illuminated numbers, etc.) and whether operated by hand (e.g., door bells) or automatically (e.g., burglar alarms). The heading also excludes: (A) Switches and switch-panels, whether or not incorporating simple indicating lights (heading 85.36 or 85.37). EN 85.37 provides, in part, that: The goods of this heading vary from small switchboards with only a few switches, fuses, etc. (e.g., for lighting installations) to complex control panels for machinetools, rolling mills, power stations, radio stations, etc., including assemblies of several of the articles cited in the text of this heading. The heading also covers: (1) Numerical control panels with builtin automatic data processing machine, which are generally used to control machinetools. (2) Programmed switchboards to control apparatus; these permit variations in the choice of operations to be followed. They are normally used in domestic electrical appliances, such as washing machines and dish washers. (3) "Programmable controllers" which are digital apparatus using a programmable memory for the storage of instructions for implementing specific functions such as logic, sequencing, timing, counting and arithmetic, to control, through digital or analog input/output modules, various types of machines. The controller clearly meets the description of goods in heading 8537, HTSUS. That is, it is a board, panel, console, desk, cabinet or other base, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity. It consists of a good which is ejusdem generis with the goods described in EN 85.37 (e.g., "small switchboards with only a few switches, fuses, etc. ... to complex control panels for machine tools, [etc.]", "[n]umerical control panels with built-in automatic data processing machine, which are generally used to control machine-tools", "[p[]rogrammed switchboards to control apparatus [permitting] variations in the choice of operations to be followed"). ("Under the rule of ejusdem generis, which means ‘of the same kind,’ where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. ... As applicable to 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" (Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994).) Although the controller also has a signaling function, it may not be classified in heading 85.31, HTSUS. That is, if the article functions as a switch-panel (on the basis of the toggle and rotation switches on the face of the controller), the statement in EN 85.31 that "[s]witches and switch-panels, whether or not incorporating simple indicating lights" classified in heading 8536 or 85.37, HTSUS, are excluded from classification in heading 8531, HTSUS, precludes classification of the controller in heading 8531, HTSUS. If, as indicated by the title given to the controller, its control function is the major, essential feature of the device, on the basis of GRI 3(a), and EN Rule 3(a)(IV), the article "... is more completely and specifically described as a bases for electric control" (Universal Electronics, Inc. v. United States, CIT Slip Op. 96-48, March 27, 1996, Customs Bulletin, vol. 30, no. 13, p. 19, 26;, affirmed 112 F.3d 468 (Fed. Cir. 1997)). If headings 8531 and 8537, HTSUS, equally merit consideration and the controller cannot be classified by reference to GRI 3(a), under GRI 3(c) it is classified under heading 8537, HTSUS, the heading which occurs last in numerical order among those which equally merit consideration. Accordingly, the controller is classified as an other board, panel, console, desk, cabinet or other base, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity in subheading 8537.10.90, HTSUS. See also, in addition to Universal Electronics, supra; A & A International, Inc. v. United States, 5 CIT 183 (1983). As stated above and as recognized by the protestant, under Additional U.S. Rule of Interpretation 1(c), if there is a specific provision for the scanner, it may not be classified as a part or accessory. Also, if classified in Chapter 90, HTSUS, the scanner is not classifiable in Section XVI (see Note 1(m), Section XVI, HTSUS). Heading 9031, HTSUS, provides for measuring or checking instruments, appliances and machines, not specified elsewhere in Chapter 90. The terms "measuring" and "checking" are not defined in the HTSUS or the ENs. Tariff terms are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’"). In United States v. Corning Glass Works, 66 CCPA 25, 586 F. 2d 822, C.A.D. 1216 (1978), the Court, quoting Webster’s Third new International Dictionary (1971), applied the following definition to a tariff provision for "measuring or checking instruments": "Check" is defined as "to inspect and ascertain the condition of especially in order to determine that the condition is satisfactory; ... investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of ...; to investigate and make sure about conditions or circumstances ...." [66 CCPA at 27] The scanner clearly meets the above definition (i.e., it inspects and ascertains the condition of machines in order to determine that the condition is satisfactory). This office has held similar articles to be measuring or checking instruments, appliances and machines in heading 9031, HTSUS (see HQs 954682 dated July 14, 1994, and 959711 dated January 6, 1997). We note that the Court, in Corning Glass Works, supra, applied the above-quoted definition of "checking" to conclude as follows: "Applying that definition, ‘checking instruments’ clearly and unambiguously encompasses machines, like those imported here, that carry out steps in a process for inspecting ampuls ..." (66 CCPA at 27; emphasis added)). Accordingly, the scanner is classified as an other measuring or checking instrument, appliance, or machine in subheading 9031.80.00, HTSUS. HOLDING: The controller is classified as an other board, panel, console for electric control in subheading 8537.10.90, HTSUS, and the scanner is classified as an other measuring or checking instrument in subheading 9031.80.00, HTSUS. The protest is GRANTED in part (as to the entries which were liquidated as entered and reliquidated more than 90 days after initial liquidation - the July 23 and 29, 1996, entries) and DENIED in part (as to the remaining entries). In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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 the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the 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, Freedom of Information Act, and other public access channels. Sincerely, John Durant, Director, Commercial Rulings Division