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HQ 088726


May 29, 1991

CLA-2 CO:R:C:M 088726 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8501.10.40

District Director
U.S. Customs Service
4735 Oakland St.
P.O. Box 390335
Denver, CO 80239-0335

RE: Protest and Request for Further Review ("PFR") 3307-90- 100054, dated September 28, 1990; PFR 3307-90-100055, dated October 15, 1990; PFR 3307-90-100056, dated October 15, 1990; PFR 3307-90-100057, dated October 15, 1990; servos used in remote control airplanes; electric motors; remote control apparatus; Section XVI, Note 2; Section XVI, Note 5; Chapter 95, Note l(m); Headquarters Ruling 086832, dated May 21, 1990; condition at time of entry

Dear Sir:

This is in response to Protest and Request for Further Review ("PFR") 3307-90-100054, dated September 28, 1990; PFR 3307-90-100055, dated October 15, 1990; PFR 3307-90-100056, dated October 15, 1990; and PFR 3307-90-100057, dated October 15, 1990; which concern certain servos used in remote control airplanes. Our decision follows.

FACTS:

The articles in question are replacement servos for use in model airplanes. Servos are the part of the model airplane which actuate the devices which control the speed and direction of the airplane's flight. Servos translate signals from a receiver into rotational movement of disks attached to the servo tops (servo arms). Usually, there are four servos per airplane, one which operates the rudder, one for the elevator, one for the aileron, and one for the engine throttle. The number of servos which a system has is dependent upon the number of channels in the system. A four channel system has four servos, and a six channel system has six servos, etc.

The operation of the servo begins with a signal sent to the airplane from the ground via a transmitter. The signal is received by the radio receiver on board the airplane. Each servo
is plugged into the receiver and the signal from the receiver is sent to the servo via a wire. The servo incorporates a small motor which is turned on and off by a received signal. The operation of the motor turns an operating wheel. The operating wheel is connected to the throttle which actuates the corresponding servo. Movement of the servo moves the attached servo arms. The movement of the servo arms directs the speed and flight path of the airplane.

Servos are available in different sizes and output configurations varying with the manufacturer. Output modes include rotary wheels or arms, opposed linear racks, or a combination of both modes on the same servo. The type and size of the aircraft flown will determine the size and nature of the servo.

Literature submitted by the importer states that a remote control airplane requires a digital proportional system. A complete digital proportional system includes a transmitter, receiver, servos, transmitter and receiver, rechargeable battery packs, charger switch harness and in most cases several mounting trays. Though the servo does not directly receive a radio signal the importer claims that the servos are commonly conceived by the trade as part of the radio reception apparatus.

The servos were entered under heading 8529, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as parts suitable for use solely or principally with radio remote control apparatus. The servos were liquidated under heading 8501, HTSUSA, as electric motors. It is from this classification that the protest arises.

ISSUE:

What is the correct classification for the servos to be used with model airplanes?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1. HTSUSA, 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 headings in contention are heading 8501, 8529, and 9503, HTSUSA. These headings describe the following:

8501 Electric motors and generators (excluding generating sets)...

8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to
8528...

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not;...parts and accessories thereof...

The relevant chapters include Chapters 85 and 95, HTSUSA. These chapters are within Sections XVI and XX, HTSUSA. The applicable notes are Section XVI, Notes 2 and 5, HTSUSA, and Chapter 95, Note l(m), HTSUSA. Chapter 95, Note l(m) states that chapter 95 does not include electric motors of heading 8501, nor does it include remote control apparatus of heading 8526. Therefore, if the servos are described by either heading 8501 or 8526, the servos are excluded from classification within heading 9503. Therefore, heading 8501 and 8529 will be examined first.

It is not disputed that the servos are parts of remote control apparatus. However, an analysis of "parts" invokes Section XVI, Note 2. This Note states the following:

...parts of machines...are to be classified according to the following rules:

(a) Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8485 and 8548) are in all cases to be classified in their respective headings;

(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;

(c) All other parts are to be classified in heading 8485 or 8548.

A machine is "any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85." Section XVI, Note 5.

According to Section XVI, Note 2(a), if the servos are described by a heading within chapters 84 or 85, it must be classified in that heading. Heading 8501, HTSUSA, specifically describes electrical motors. To determine what is meant by "electrical motors" of this heading, the Explanatory Notes to the HTSUSA must be examined. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Explanatory Note 85.01(I)(A) states that "Motors remain classified here even when they are equipped with pulleys, with gears or gear boxes, or with a flexible shaft for operating hand tools." Explanatory Note 85.01(I)(A), Harmonized Commodity Description and Coding Service ("HCDCS"), Vol. 4, p.1334. This Note further comments that heading 8501 includes linear motors such as a servomotor presented separately which consists of an electric motor with speed reducing gears and equipped with a power transmission device, along with self-synchronizing units used in remote control systems. In Headquarters Ruling 086832, dated May 21, 1990, this office stated "a motor remains a motor for tariff purposes despite having other articles attached to it. These other articles can be quite substantial."

The servos consist primarily of a motor, operating wheel, servo arms, and electrical wiring. The servo itself does not receive a signal. The signal is transferred to the motor which powers and operates the operating wheel and subsequently the servo arms. Articles of this type are meant to be included in heading 8501. Thus, it is the opinion of this office that the servos are described by heading 8501. Since the servos are described by heading 8501, they cannot be classified within chapter 95.

This office does not dispute that the servos are used principally or solely with remote control apparatus. Remote control apparatus are classified in heading 8526, HTSUSA. Therefore, the servos are also described by heading 8529. However, Section XVI, Note 2(a) requires that parts must first be classified in their respective headings if such a heading exists. Section XVI, Note 2(b), HTSUSA, is never reached in this instance, because electrical motors are specifically provided for in heading 8501.

The importer states that the motor is only a part of the servo. They assert that the motor by itself is not capable of providing a proportional response. The starting and stopping and directional guidance are performed by the servos. The importer contends that it is the electronics of the entire system that achieve these results, and that a motor without a proportional control signal and a power source is useless. Although these points are correct, also true is the reverse of these
contentions. The proportional control signal and a power source are useless without a motor. Without the motor the airplane would be unable to function. The motor is as vital to the performance of the airplane as all the other components.

The importer also contends that the servo is part of a remote control system. The servos in question were entered by themselves, not with a system. Customs must classify products in their condition at the time of entry. United States v Citroen, 223 U.S. 407 (1911).

The subject servos are described by heading 8501 in accordance with GRI 1. The proper classification for the servos is in subheading 8501.10.40, HTSUSA, as "Electric motors and generators (excluding generating sets)...Motors of an output not exceeding 37.5 W...Of under 18.65 W...Other..."

HOLDING:

The servos which are to be used with model airplanes are described by heading 8501 in accordance with GRI 1, Section XVI, Notes 2 and 5. The proper classification for the servos is in subheading 8501.10.40, HTSUSA, as "Electric motors and generators (excluding generating sets)...Motors of an output not exceeding 37.5 W...Of under 18.65 W...Other..." The applicable rate of duty is 6.6% ad valorem.

PFR 3307-90-100054, dated September 28, 1990; PFR 3307-90- 100055, dated October 15, 1990; PFR 3307-90-100056, dated October 15, 1990; PFR 3307-90-100057, dated October 15, 1990; which concern servos used in remote control airplanes should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action for the protests.

Sincerely,

John Durant, Director

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