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HQ 964656




July 23, 2002

CLA-2 RR:CR:GC 964656 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9107.00.80; 8536.49.00

Curtis W. Knauss
John M. Peterson
Neville Peterson LLP
80 Broad Street – 34th Floor
New York, NY 10004

RE: HQ 962138 Modified; Relays

Dear Messrs. Knauss and Peterson:

This is in response to your letter of November 1, 2000, on behalf of Rockwell Automation/Allen-Bradley Co., LLC (“Allen-Bradley”), requesting reconsideration of HQ 962138 dated July 28, 1999, issued to Allen-Bradley with respect to the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of numerous articles. We have also considered the claims made by you in a conference held at Customs Headquarters on November 26, 2001 and in a submission of December 18, 2001.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of HQ 962138, as described below, was published in the Customs Bulletin on June 12, 2002.

The comment submitted by you on behalf of Allen-Bradley was the only comment received in response to the notice. In your comment, you make the following claims in support of your position that the goods are classified in heading 8536, HTSUS: 1. Relays are not switches, and are therefore not classified as switches; they are different products which have different functions. 2. The relays do not contain a clock or watch movement.

Our response to your claims is as follows. Switches and relays are similar devices. This is evident from the language of EN 85.36 which describes relays, including time-delay relays under the following heading: “(I) APPARATUS FOR SWITCHING ELECTRICAL CIRCUITS.” [Emphasis in original.] Thus, the relays of heading 8536, HTSUS, are apparatus for switching electrical circuits.

The crucial inquiry here is whether the relays meet the terms of heading 9107, HTSUS. i.e., are they time switches with clock or watch movements? As the analysis below indicates, we believe that three of the subject relays are time switches with clock or watch movements and are therefore described in heading 9107, HTSUS. Contrary to one of your claims, there are timing relays which use means of timing other than clock or watch movements, e.g., pneumatic time-delay relays and thermal time-delay relays.

In summary, the claims made in your comment have not persuaded us to substantively amend or withdraw our proposal to modify HQ 962138.

FACTS:

HQ 962138 concerned the classification of numerous items. You request reconsideration of the classification of certain relays, which were classified in subheading 9107.00.80, HTSUS, as; “Time switches with clock or watch movement or with synchronous motor: . . . Valued over $5 each.”

In your letter of November 1, 2000, you describe the goods as follows:

The merchandise in question consists of certain “HR” and “HT” Series solid state electrical timing relays imported from Japan and Switzerland . . . These timing relays are connected in an electrical system, usually on a control panel in an appropriate socket. The timing relay is a component of an integrated electrical system that may include several other electrical components. The function of the timing relay is to provide electrical power to specific apparatus at a specified time after electrical power has been applied to the entire electrical system. When power is applied to the timing relay, the interior electrical components provide a specific delay period, programmed by the user, for the application of electrical current to the particular apparatus in the electrical circuit or system. The time intervals can be set by the customer within a range specified by the particular timing relay.

In order to set a delay period, the customer manually turns the timing potentiometer, or dial, on the timing relay with the use of a screwdriver.

The timing relays are used in various applications. The most widely used application for the timing relays is in a control panel on an assembly operation or conveyor line. Specific assembly operations are controlled with timing relays so that specific operations are performed in the correct sequence, at the correct time through the prescribed automated procedure . . .

The timing relay consists of a number of electrical components contained in a plastic housing. The interior electrical components are composed of: a set of moveable contact blocks; a set of stationary contact blocks; a wound magnetic coil mounted on a stack of steel laminations; and a circuit board containing various components including resistors that regulate the period of time between cycles of the timing relay.

You have provided samples of each of the subject five relays which you enumerate as follows:

1. 700DC-R130Z24 Series B
2. 700-FSA3UU23 Series B
3. 700-HB33A1-3 Series D
4. 700-HSF12F15A1 Series A
5. 700-HT12BA1 Series A

ISSUE:

What is the classification under the HTSUS of the subject relays?

LAW AND ANALYSIS:

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:

8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V:

Relays:

8536.49.00 Other

9107 Time switches with clock or watch movement or with synchronous motor:

9107.00.80 Valued over $5 each

EN 85.36 provides in pertinent part as follows.

These apparatus consist essentially of devices for making or breaking one or more circuits in which they are connected, or for switching from one circuit to another . . . This group also includes change-over switches and relays . . . . . .
(C) Relays are electrical devices by means of which the circuit is automatically controlled by a change in the same or another circuit. They are used, for example, in telecommunication apparatus, road or rail signalling apparatus, for the control or protection of machine tools, etc. [Emphasis in original.]

EN 91.07 provides in pertinent part as follows:

This heading covers devices which do not have the character of clocks of heading 91.05, but are mainly designed to make or break electric circuits automatically at given times, usually at times determined according to a previously established daily or weekly programme. To be included in this heading these devices must have a movement of the watch or clock type (including secondary or synchronous motor clock movements) or a synchronous motor with or without reduction gear.

Time switches are used for the control of lighting circuits (for public places, shop windows, staircases, illuminated signs, etc.), heating circuits (water heaters, etc.), cooling installations, pumps, two-rate electricity supply meters, etc. They consist essentially of a mechanical or electric movement of the watch or clock type or a synchronous motor, usually a dial with or without hands, a time-regulating device (levers and pins), together with systems of driving relays, switches and commutators. [All emphasis in original.]

The General EN for Chapter 91, HTSUS, provides in pertinent part as follows:

This Chapter covers certain apparatus designed mainly for measuring time or for effecting some operation in relation to time. [Emphasis provided.]

Chapter 91, Note 3, HTSUS, provides as follows:

For the purposes of this chapter, the expression “watch movements” means devices regulated by a balance wheel and hairspring, quartz crystal or any other system capable of determining intervals of time, with display or a system to which a mechanical display can be incorporated. Such watch movement shall not exceed 12 mm in thickness and 50 mm in width, length or diameter. [Emphasis in original.]

Chapter 91, Additional U.S. Note 1(d) provides as follows:

The term “clock movements” means devices regulated by a balance wheel and hairspring, quartz crystal or any other system capable of determining intervals of time, with a display or a system to which a mechanical display can be incorporated. Such clock movements shall either exceed 12 mm in thickness or 50 mm in width, length or diameter, or both. [Emphasis in original.]

We referred this matter to the Customs Service Office of Laboratories and Scientific Services for its review. In Laboratory Report # SF20011771 dated April 18, 2001, the Customs San Francisco Laboratory stated in pertinent part as follows:

Relays (1) and (3) [700DC-R130Z24, Series B and 700-HB33A1-3, Series D, respectively; see the listing of the relays in the FACTS section] have no timing capability, although a timing module option is available for (1). Relays (1) and (3) do not have a clock or watch movement, or a synchronous motor. Relays of this type, in our opinion, fall under HTSUS heading 8536.

Relays (2), (4), and (5) [700-FSA3UU23, Series B, 700-HSF12F15A1, Series A, and 700-HT12BA1, Series A, respectively; see the listing of the relays in the FACTS section] are identified as timing relays and each has electronic circuitry that performs the timing functions. Each of these circuits contains a component that is “. . . capable of determining intervals of time . . .” The time delay for relay (4) is factory set, while it can be user-changed in (2) and (5). In our opinion, relays (2), (4), and (5) contain a watch or clock movement as described in Note 3 or Additional U.S. Note 1(d) to HTSUS Chapter 91. We believe that they are “time switches” of HTSUS heading 9107.

Our discussions with the Customs Laboratory indicated that relays (2), (4), and (5) have a system to which a mechanical display can be incorporated. See the definitions of “watch movements” and “clock movements,” above.

The Customs Laboratory provided us with the following definitions of “relays.” IEEE 100, The Authoritative Dictionary of IEEE Standards Terms (7th ed., 2000): “An electrically controlled, usually two-state, device that opens and closes electrical contacts to effect the operation of other devices in the same or another electrical circuit.” Electromechanical Design Handbook by Ronald Walsh (3rd ed, 2000): “Relays are switching devices that are available with a multitude of contact arrangements, coil-voltage ratings, contact-voltage ratings, and contact-current ratings.” The Art of Electronics by Paul Horowitz and Winfield Hill (2nd ed.; 1989): “Relays are electrically controlled switches.”

Other definitions of “relays” are as follows. The Dictionary of Multimedia Terms & Acronyms by Bill Hansen (1997): “A type of switch that is electronically opened or closed to connect circuitry.” The Computer Glossary by Alan Freedman (1998): “An electrical switch that allows a low power to control a higher one. A small current energizes the relay, which closes a gate, allowing a large current to flow through.”

In American Division of Magic Chef, Inc. v. United States, 14 CIT 868, 754 F. Supp. 881 (1990), the court considered Customs classification of defrost control timers as time switches under item 715.62, Tariff Schedules of the United States, which was the predecessor provision to heading 9107, HTSUS. (The superior heading to item 715.62 provided for: “Time switches with watch or clock movements, or with synchronous or subsynchronous motors.”) We believe certain language of the court is instructive as to heading 9107, HTSUS. The court stated:

Nothing in the record or authorities cited leads this Court to conclude that Congress intended time switches to carry the restrictive and technical definition which plaintiff attaches. If the Court were to adopt plaintiff’s definition of a time switch under TSUS item 715.62, then any device that makes or breaks an electric circuit after it measures an interval of time predetermined by the manufacturer, standing alone, could not be a time switch. As discussed herein, the Court finds that Congress did not contemplate that time switches tell the time of day, have dials, operate continuously without interruptions, and be set by the consumer to operate at clock times. Presumably, some time switches require those characteristics to carry out their intended functions. Nevertheless, the defrost control timers in their present condition satisfy the principal requirements for time switches found in the Tariff Classification Study, the Brussels Nomenclature, and in paragraph 368(a) of the Tariff Act of 1930. They make or break electric circuits after they have measured a specific time interval as predetermined by the manufacturer. [Emphasis in original.]

We believe that this language of the court is instructive as to the scope of heading 9107, HTSUS. For example, Congress has indicated that earlier tariff decisions must not be disregarded in applying the HTSUS. The conference report to the Omnibus Trade Bill of 1988 states that “on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US}." Rep. No. 100-576, 100th Cong, 2d Sess. 548, 550 (1988).

After a careful consideration of this matter we make the following determinations.

Relays (1) and (3), as enumerated in the FACTS section (700DC-R130Z24, Series B and 700-HB33A1-3, Series D, respectively) do not have a clock or watch movement or a synchronous motor. Therefore, they are not described in heading 9107, HTSUS. Accordingly, we find that they are described in heading 8536, HTSUS, and are classified in subheading 8536.49.00, HTSUS, as: “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V: . . . Relays: . . . Other.”

Relays (2), (4), and (5), as enumerated in the FACTS section [700-FSA3UU23, Series B, 700-HSF12F15A1, Series A, and 700-HT12BA1, Series A, respectively] have watch or clock movements as defined in the Notes to Chapter 91 and are time switches. Therefore, they are classified in subheading 9107.00.80, HTSUS, as: “Time switches with clock or watch movement or with synchronous motor: . . . Valued over $5 each.”

HOLDING:

Relays (1) and (3), as enumerated in the FACTS section (700DC-R130Z24, Series B and 700-HB33A1-3, Series D, respectively) are classified in subheading 8536.49.00, HTSUS, as: “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V: . . . Relays: . . . Other.”

Relays (2), (4), and (5), as enumerated in the FACTS section [700-FSA3UU23, Series B, 700-HSF12F15A1, Series A, and 700-HT12BA1, Series A, respectively] are classified in subheading 9107.00.80, HTSUS, as: “Time switches with clock or watch movement or with synchronous motor: . . . Valued over $5 each.”

EFFECT ON OTHER RULINGS:

HQ 962138 is modified. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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