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HQ 964778




November 16, 2001

CLA-2 RR:CR:GC 964778 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9107.00.40

Port Director
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202

RE: Protest 1303-99-100333; Printed Circuit Board Assemblies

Dear Port Director:

This is our decision regarding Protest 1303-99-100333, filed on behalf of Melnor, Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain printed circuit board assemblies.

FACTS:

The file reflects the following. The three entries at issue were filed between July 23, 1998 and August 25, 1998. All three entries were liquidated on August 13, 1999. The protest was filed on November 10, 1999.

The merchandise at issue (part nos. EWT 3000, EWT 3025, and EWT 3050) was entered under subheading 8531.20.00, HTSUS. The entries were liquidated under subheading 9107.00.40, HTSUS. The protestant now claims that the printed circuit board assemblies are classified in subheading 8481.90.90, HTSUS, or in subheading 9817.00.50, HTSUS.

A sample of the merchandise was sent to the Customs Laboratory for its analysis. Laboratory Report No. 4-2000-50152-001 dated May 26, 2000, states as follows:

The sample is the front panel of a water (turf/garden type) sprinkler system. The sample can not function as imported. The sample needs a power supply and some wiring to function. The sample does not contain a synchronous motor. The panel connects to some electrical circuit, which we can not see because it is encased in a black plastic material. The electrical circuit board contains input and output devices. The output devices are a sounding device and a liquid crystal display (lcd) (a visual output device). The input devices are push buttons.

The electrical circuit is complete and functions as a programmable (time and day) electrical timer switch for 5 solenoid valves. The electrical circuit requires a power supply and wiring to the solenoid valves.

The protestant describes the merchandise, in pertinent part, as follows:

The imported merchandise consists of three types of PCBs or controllers, whose designed intent and sole purpose are to control the operation of a valve in a water metering device . . . Three types of signal devices, (1) liquid crystal devices (LCDs”), (2) a light emitting diode (“LED”), and (3) a buzzer communicate to the user valve activation, erroneous input and a low battery condition.

As imported, the controllers incorporate the following components: 1) a processor that includes the electrical circuitry and software programming to control the operation of the valve and associated auxiliary components; 2) an input device (a plurality of switches) that allows the user to make inputs to the processor; 3) a user display device (on two of the controllers, the display is an LCD, and on the third, the display is an LED – the LCDs display the current valve programming user inputs, time and date, and a low battery condition; 4) a buzzer that signals an error condition; and 5) various resistors, capacitors and diodes to connect power from a battery to the motor.

ISSUE:

What is the tariff classification of the printed circuit board assemblies?

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. GRI 2(a) provides in pertinent part: “Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.”

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:

8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:

8481.90 Parts:

8481.90.90 Other

9107.00 Timer switches with clock or watch movement or with synchronous motor:

9107.00.40 Valued not over $5 each

9817.00.50 Machinery, equipment, and implements to be used for agricultural or horticultural purposes.

The protestant claims that the printed circuit board assemblies “primarily function as a part of a valve” in that they “are designed for incorporation into a water metering device . . .”

Note 2 to Chapter 90, HTSUS, provides as follows:

Subject to note 1, above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:

(a) Parts and accessories which are goods in any of the headings of this chapter or of chapter 84 and 85 or 91 (other than heading 8485, 8548 or 9033) are in all cases to be classified in their respective headings;

(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013, or 9031) are to be classified with the machines, instruments or apparatus of that kind;

(c) All other parts and accessories are to be classified in heading 9033.

Thus, pursuant to Note 2(a) to Chapter 90, if the printed circuit board assemblies are goods of heading 9107, HTSUS, they are classified in that heading and not as a part in heading 8481, HTSUS.

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 . . .

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 supple meters, etc. . . . [All emphasis in original.]

Based upon our conversations with the Customs Laboratory, we conclude that the printed circuit board assemblies are described in EN 91.07. In Admiral Division of Magic Chef, Inc. v. United States, 14 CIT 868, 874 (1990), a case involving the predecessor provision to heading 9107 under the Tariff Schedules of the United States, the court stated: “The technical, scientific definitions of time switches are not controlling . . . The Court finds that the common, ordinary meaning of a time switch [is] somewhat broader, as reflected by the following definition found in Webster’s Third New International Dictionary 2395 (1986): ‘an electric switch that automatically operates at a set time.’ ”

We find that the printed circuit board assemblies meet the definition of “time switch” cited by the court in Admiral Division of Magic Chef, Inc. v. United States, supra.

As stated above, the Customs Laboratory has described the printed circuit board assemblies in pertinent part as follows: “The sample is the front panel of a water (turf/garden type) sprinkler system . . . The electrical circuit is complete and functions as a programmable (time and day) timer switch for 5 solenoid valves. The electrical circuit requires a power supply and wiring to the solenoid valves.”

Based upon that description and determination, and upon our determinations, above, we find that the printed circuit board assemblies are incomplete or unfinished time switches with clock or watch movements within the meaning of heading 9107, HTSUS. The printed circuit board assemblies are described in heading 9107, HTSUS. Our finding is made pursuant to GRI 1 and GRI 2(a).

In HQ 953933 dated August 10, 1993, we held that a dishwasher control panel which contained the controls for the timing and operation of cycles of the machine was classified as a time switch in heading 9107, HTSUS. In HQ 961127 dated February 16, 1999, we held that a “clean timer” for use in gas or electric household ranges was classified as a time switch in heading 9107, HTSUS.

The protestant’s claim with respect to classification in subheading 9817.00.50, HTSUS, is dependent upon compliance with the actual use regulations, 19 CFR 10.131 through 19 CFR 10.139. 19 CFR 10.131 provides in pertinent part as follows:

When the tariff classification of any article is controlled by its actual use in the United States, three conditions must be met in order to qualify for free entry . . . The conditions are that: (a) Such use is intended at the time of importation. (b) The article is so used. (c) Proof of use is furnished within 3 years after the date the article is entered or withdrawn from warehouse for consumption.”

19 CFR 10.134 provides in pertinent part as follows:

A showing of intent by the importer as to the actual use of imported merchandise shall be made by filing with the entry for consumption or for warehouse a declaration as to the intended use of the merchandise, or by entering the proper subheading of an actual use provision of the Harmonized Tariff Schedule of the United States (HTSUS) and the reduced or free rate of duty on the entry form.

19 CFR 10.112 provides for an extended period up to the time that liquidation becomes final for the filing of free or reduced entry documents in the absence of willful negligence or fraudulent intent. However, Customs has held that making a claim for subheading 9817.00.50, HTSUS, on protest is not sufficient compliance with 19 CFR 10.112. See HQ 964657 dated August 2, 2001.

By letter of November 9, 1999, an official of the protestant stated as follows:

Melnor Inc. hereby declares that the merchandise entered under the above referenced entry [one of the three entries at issue in this protest] is to be used for agricultural or horticultural purposes in accordance with subheading 9817.00.50, HTSUS. This declaration is being filed pursuant to 19 CFR 10.112

The date of the above letter, November 9, 1999, is over 15 months after the subject entry was filed, almost 90 days after the entry was liquidated, and one day prior to the date of the subject protest. It is our determination that the November 9, 1999 letter does not satisfy the actual use requirements of the Customs Regulations with respect to the one entry at issue identified in that letter. Among other insufficiencies, the protestant has not satisfied the condition of 19 CFR 10.133 that “[s]uch use is intended at the time of importation.” As stated above, Customs has held that making a claim for subheading 9817.00.50, HTSUS, on protest is not sufficient compliance with 19 CFR 10.112. The filing of the letter of November 9, 1999, one day prior to the date of the protest, is essentially the same as making the statement on the protest. Further, the protestant has not established that such use was intended at the time of importation. Accordingly, we find that the protestant’s claim with respect to subheading 9817.00.50, HTSUS, is without merit. Our analysis and determination on this issue only applies to the one entry identified in the November 9, 1999 letter. No such statement was made with respect to the other two entries which are the subject of this protest.

Accordingly, pursuant to GRI 1 and GRI 2(a), we find that the printed circuit board assemblies are described in heading 9107, HTSUS, and are classified in subheading 9107.00.40, HTSUS, as: “Timer switches with clock or watch movement or with synchronous motor: Valued not over $5 each.”

HOLDING:

The printed circuit board assemblies are classified in subheading 9107.00.40, HTSUS, as: “Timer switches with clock or watch movement or with synchronous motor: Valued not over $5 each.”

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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