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HQ 963805




December 14, 2001

CLA-2 RR:CR:GC 963805 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.89.96

Port Director
U.S. Customs Service
Second and Chestnut Streets
Philadelphia, PA 19106

RE: Protest 1101-00-100269; Transmission control module; Powertrain control module

Dear Port Director:

This is our decision regarding Protest 1101-00-100269, filed by General Motors Corporation (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain transmission control modules (TCM’s).

FACTS:

The file reflects the following. The entry was filed on August 2, 2000, and was liquidated on October 27, 2000. The protest was filed on December 12, 2000. In preparing this ruling, consideration was given to arguments presented by the protestant in a meeting on November 8, 2001.

The merchandise was entered under subheading 9032.89.60, HTSUS, as: “Automatic regulating or controlling instruments and apparatus; parts and accessories thereof: . . . Other instruments and apparatus: . . . Other: . . . Other.” The entry was liquidated under subheading 8543.89.96, HTSUS, as: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: . . . Other machines and apparatus: . . . Other: . . . Other: . . . Other: . . . Other.”

In the protestant’s letter of May 14, 2001, it describes the article as follows:

The merchandise at issue has been referred to as a “Powertrain Control Module” (“PCM”), “Powertrain/Transmission Control Module” and “Transmission Control Module” (“TCM”) in previous documents submitted to Customs. It is most accurately described as a TCM because it is used within the transmission assembly of a motor vehicle. The powertrain of a vehicle is the “mechanisms that carry power from the engine crankshaft to the drive wheels; includes the clutch, transmission, drive shaft, differential and axles.” W.H. Crouse and D.L. Anglin, Automotive Mechanics, 810 (10th ed., 1995) . . . The TCM receives electronic signals from various measuring devices (e.g., the pressure switch manifold, transmission input speed sensors, engine coolant temperature sensor, and throttle position sensor). The TCM interprets the data provided by these electronic signals to determine appropriate adjustments in the operation of the transmission. Once these adjustments are determined, the TCM sends a signal to various output devices (e.g., shift solenoids, pulse width modulated TCC solenoid, and variable force motor) to provide the necessary adjustments or automatically change the gears within the transmission. In making these adjustments, the TCM also controls such variables as the pressure of liquids (e.g., fluid pressure of the band servos and clutches).

In an attachment to its May 14, 2001 submission, the protestant describes the TCM as follows:

The article at issue, part number 24216496, is described as a “Transmission Control Module.” The transmission control module is a computer that regulates shifting and torque converter lockup clutch in response to input received by sensors and switches. The sensors and switches which provide the information are the transmission input speed sensor, transmission output speed sensor, engine coolant temperature sensor, throttle position sensor, engine speed sensor, brake switch and pressure switch manifold. The computer produces output signals that activate relays, which in turn operate electrical solenoid valves. The computer frequently reviews the information received and compares it to information that it has stored in its memory so it can make quick adjustments as needed.

At our meeting, the protestant stated that the TCM governs the shifting of the transmission and controls the transmission fluid, i.e., directs the transmission fluid to the correct passages for the correct gear and adjusts the pressure of the transmission fluid. The protestant stated that the TCM changes the flow and pressure of the transmission fluid.

ISSUE:

What is the classification under the HTSUS of the TCM?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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.

The HTSUS provisions under consideration are as follows:

9032 Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:

Other instruments and apparatus:

9032.89 Other:

9032.89.60 Other

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

Other machines and apparatus:

8543.89 Other:

Other:

Other:

8543.89.96 Other.

EN 85.43 provides, in pertinent part: “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.” [Emphasis in original.]

Note 1(m) to Section XVI, HTSUS (which includes Chapters 84 and 85) provides: “This section does not cover: . . . Articles of chapter 90.”

Pursuant to Note 1(m) to Section XVI, HTSUS, and EN 85.43, if the article is classified in heading 9032, HTSUS, it is not classified in heading 8543, HTSUS.

Note 6 to Chapter 90 provides:

Heading 9032 applies only to:

(a) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled; and

(b) Automatic regulators of electrical quantities, and instruments and apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.

EN 90.32 provides in pertinent part as follows:

In accordance with Note 6 to this Chapter, this heading covers:

(A) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled, which are designed to bring this factor to, and maintain it at, a desired value, stabilised against disturbances, by constantly or periodically measuring its actual value; and

(B) Automatic regulators of electrical quantities, and instruments and apparatus for automatically controlling non-electrical quantities, the operation of which depends on an electrical phenomenon varying according to the factor to be controlled, which are designed to bring this factor to, and maintain it at, a desired value, stabilised against disturbances, by constantly or periodically measuring its actual value. . . .
Automatic control apparatus for liquids or gases and apparatus for automatically controlling temperature form part of complete automatic control systems and consist essentially of the following devices:

(A) A device for measuring the variable to be controlled (pressure or level in a tank, temperature in a room, etc.) . . .

(B) A control device which compares the measured value with the desired value and actuates the device described in (C) below accordingly.

(C) A starting, stopping or operating device.

Apparatus for automatically controlling liquids or gases or temperature, within the meaning of Note 6(a) to this Chapter, consists of these three devices forming a single entity or in accordance with Note 3 to this Chapter, a functional unit.

Some instruments and apparatus do not incorporate devices which compare the measured value with the desired value. They are directly activated by means of a switch, e.g., when the predetermined value is reached.

Protestant’s Claims

In its May 14, 2001 submission, the protestant states, in pertinent part, as follows:

Heading 9032, HTSUS, provides for “[a]utomatic regulating and controlling instruments and apparatus.” The TCM satisfies the terms of this heading. It receives signals from measuring devices, interprets data from these signals, and sends signals to various output devices in order to automatically control the operation of the transmission. Therefore, the TCM is properly classified as an automatic controlling instrument and apparatus within heading 9032, HTSUS, based on the terms of the heading. More specifically, the TCM is classified within heading 9032.89.60, HTSUS.

The conclusion that the TCM satisfies the terms of heading 9032, HTSUS, is also supported by technical literature on the subject. A PCM is defined as “an electronic module or computer that receives input from various engine and powertrain sensors, and responds by sending output signals to various engine and powertrain controls.” Automotive Mechanics at 810 . . . the TCM and PCM are similar devices that function in essentially the same manner (i.e., they receive signals from measuring devices, interpret the data from these signals, and send signals to output devices to control the operation of an automotive component). The main difference in the devices is that the TCM controls the transmission (i.e., a part of the powertrain) while the PCM controls the entire powertrain.

The protestant also states that: “The TCM also controls such variables as the pressure of liquids (e.g., fluid pressure of the band servos and clutches) in order to carry out its control function.”

Discussion of Classification

As stated above, if the TCM is classified in heading 9032, HTSUS, it is not classified in heading 8543, HTSUS. Heading 8543, HTSUS, is a residual heading in which the TCM will fall if it is not classified in another heading. Therefore, the crucial inquiry is whether the TCM is described in heading 9032, HTSUS. In making this inquiry, careful consideration must be given to Note 6 to Chapter 90 and EN 90.32.

The protestant describes the function of the TCM as follows: it receives electronic signals from various measuring devices; it interprets the data provided by these signals to determine appropriate adjustments in the operation of the transmission; and it sends a signal to various output devices to provide the necessary adjustments or automatically change the gears in the transmission.

For the following reasons, we find that the protestant has not established that the TCM is described in heading 9032, HTSUS.

The protestant has not established that the TCM is an instrument or apparatus “for automatically controlling the flow, level, pressure or other variables of liquids . . . which are designed to bring the factor to be controlled to, and maintain it at a desired value, stabilised against disturbances, by constantly or periodically measuring its actual value.” See EN 90.32, excerpted above. Similarly, the protestant has not established that the TCM is an instrument or apparatus “for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.” See EN 90.32, excerpted above. The protestant claims that the “factor to be controlled” is the gear which the automobile is in. We do not believe that the gear of the automobile is a “factor to be controlled” within the meaning of EN 90.32 and Note 6 to Chapter 90, HTSUS.

The fact, as stated by the protestant, that the TCM governs the shifting of the transmission and controls the transmission fluid (i.e., directs the transmission fluid to the correct passages for the correct gear and adjusts the pressure of the transmission fluid) does not establish that the TCM maintains the transmission fluid at a desired value by constantly or periodically measuring its actual value. See EN 90.32.

The TCM appears to be similar to the article in HQ 964529 dated September 4, 2001, an autothrottle, which was described as follows:

The autothrottle’s specific function is to control the position of engine throttle levers that regulate the supply of fuel to an aircraft’s engines. In a fully automated system, the pilot selects one of the pre-programmed flight plans or routes in the Flight Management Control System (FMCS), which consists of a central processing unit, display and keyboard. In a semi-automatic system, the pilot may input distances, speeds and directions through a control panel. The FMCS then transmits to the autothrottle the positions of the throttle control levers necessary to maintain, increase or decrease engine thrust consistent with the flight plan selected. The autothrottle uses servomotors to move to the correct position the control levers which regulate the throttle valve. The valve opening thus determines the amount of fuel entering the engine and, consequently, engine fan speed.

Customs classified the autothrottle in HQ 964529 in subheading 8537.10.90, HTSUS. We find that classification in heading 8537 is not appropriate here because, inter alia, there is no evidence or assertion that the TCM contains two or more apparatus of heading 8535 or 8536.

We find that the TCM is described in heading 8543, HTSUS, and is classified in subheading 8543.89.96, HTSUS, as: “Electrical machines or apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: ... Other machines and apparatus: ... Other: ... Other: ... Other: ... Other.”

HOLDING:

The TCM is classified in subheading 8543.89.96, HTSUS, as: “Electrical machines or apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: ... Other machines and apparatus: ... Other: ... Other: ... Other: ... Other.”

You are instructed to DENY the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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