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HQ 967440




November 23, 2005

CLA-2 RR:CTF:TCM 967440 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8537.10.9000

Mr. Donald J. Unger, Esq.
Barnes, Richardson & Colburn
303 East Wacker Drive, Suite 1100
Chicago, IL 60601

RE: Request for Reconsideration of NY K84357; Electronic Control Boards

Dear Mr. Unger:

This letter is in response to your request of November 29, 2004, on behalf of your client, Electrolux Home Products, N.A., for reconsideration of New York Ruling Letter (NY) K84357, dated April 16, 2004, as it pertains to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of an electronic controller board for a washing machine.

FACTS:

In NY K84357, dated April 16, 2004, an electronic controller board for a washing machine was classified in subheading 8537.10.9000, HTSUSA, the provision for other boards, panels and other bases, , for electric control or the distribution of electricity, : for a voltage not exceeding 1000V. Classification under heading 9032, HTSUSA, was precluded because of the controller board’s inability to meet the terms of Note 7 to Chapter 90, HTSUSA.

The electronic controller board are for use in front-load household washing machines. The board is surrounded by metal on three sides and is placed inside the washing machine floor. The metal surrounding the board acts as a heat sink. Wiring connects the board to the timer and the motor of the washing machine. The board is populated with various components including fuses, surge protectors, transistors, capacitors, etc. The controller board is the only printed circuit board in the entire washing machine and controls all of the functions necessary for the washing machine’s operation. Among those functions is the boards ability to measure the variation in the tub RPM and torque variations caused by uneven demands on the motor as the tub is rotating. If the board senses and out-of-balance load condition prior to operation of the spin cycle, the board will restart the spin cycle with an out-of-balance algorithm. The board can also start and stop the washing machine through control of the motor and timer motor.

ISSUE:

Whether the electronic controller board is classified as automatic regulator of heading 9032, HTSUSA, or as a board for electrical control of heading 8537, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

It is your position that the controller board is classified in heading 9032, HTSUSA and that it meets the terms of Note 7 to Chapter 90. Heading 9032, HTSUSA, provides for “automatic regulating or controlling instruments and apparatus; parts and accessories thereof.” You argue that it meets these terms by measuring the variation in the tub’s RPM and torque prior to operation of the spin cycle and restarting the spin cycle with an out-of-balance algorithm if an out-of-balance condition is detected. You also argue it is programmed with the wash and spin cycle profiles, cycle state function and controls the motor timer.

Note 1(m) to Section XVI, HTSUSA (which includes Chapters 84 and 85) provides: "This section does not cover: . . . Articles of chapter 90." Moreover, EN 85.37 provides in pertinent part: "This heading does not cover automatic controlling apparatus of heading 90.32." Accordingly, pursuant to Note 1(m) to Section XVI, HTSUSA, if the controller board is described in heading 9032, HTSUSA, it cannot be classified in Chapter 85.

Heading 9032, HTSUS, is governed by Note 7 to Chapter 90. It provides in relevant part:

Heading 90.32 applies in pertinent part to:

(b) Automatic regulators of electrical quantities, and instruments 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, 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.

You cite to HQ 965948, dated January 27, 2003, in which we stated that both headings 8537 and 9032, HTSUSA, are controlled by use. Under the GRIs, it is the principal use of the class or kind of goods to which the imports belong at or immediately prior to the time of importation and not the principal use of the specific import that is controlling. See Group Italglass U.S.A., Inc. v. United States, 17 C.I.T. 1177, 1177, 839 F. Supp. 866, 867 (1993); see also Additional U.S. Rule of Interpretation 1(a), HTSUS ("ARI 1(a)"). You argue that the principal use of the electronic controller board is that of a regulator of the out-of-balance condition. You also cite to several rulings in which varying merchandise was classified in heading 9032, HTSUSA, including NY 854001, dated July 24, 1990, HQ 087880, dated January 28, 1991 and HQ 963819, dated July 19, 2000. The aforementioned rulings have been revoked by operation of law to the extent that the aforementioned rulings are contrary to the legal text of Note 7 as amended in 2002. See HQ 966732, dated August 13, 2004.

The electronic controller board is the only printed circuit board in the washing machine and controls all functions necessary for the operation of the washing machine. The electronic controller board does control a non-electrical quantity, i.e., torque variation, but this quantity is not constantly or periodically measured against its actual value. Rather the torque variation is measured once before the spin cycle. Moreover, if the torque variation is not maintained at its desired level, the board is programmed to restart the spin cycle with an out-of-balance algorithm. Thus, the board does not bring the torque variation back to the desired level but allows the machine to function at an alternate torque variation. Accordingly, the electronic controller board does not meet the terms of Note 7 to Chapter 90, HTSUSA, and cannot be classified in heading 9032, HTSUSA. We turn then to heading 8537, HTSUSA.

The E.N. to heading 8537, HTSUSA, provides in pertinent part:

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 machine-tools, 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 :

(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.

The heading includes a wide variety of goods, large and small, complex and relatively simple (other than simple switch assemblies). See Universal Electronics, Inc. v. United States, 20 C.I.T. 337 (CIT 1996) aff’d 112 F.3d 488 (CAFC 1997); EN 85.37. The Court of International Trade stated that lexicographic sources indicated that the phrase "panels . . . and other bases," as used in heading 8537, HTSUSA, refers to "foundations, which may be flat, upon which electrical devices rest." Universal Electronics, Inc. v. United States, 20 C.I.T. 337, 340. Additionally, the court found that such electrical devices must serve as part of a control system, i.e., they must be a part of a system in which information is input, and as a consequence, electricity causes the desired result to occur. Id. at 341.

The electronic controller board is a panel upon which various components classified in heading 8536, i.e., fuses, surge protectors, transistors, capacitors, etc., are placed. The electronic controller board is a control system in which information is input and electricity causes the desired result to occur such as advancing the timer or running the motor. Thus, the board eo nomine meets the terms of heading 8537, HTSUSA.

HOLDING:

By application of GRI 1, the electronic controller board is classified in heading 8537, HTSUSA. It is specifically provided for in subheading 8537.10.9000, HTSUSA, the provision for boards, panels, and other bases, , for electric control or the distribution of electricity, : for a voltage not exceeding 1000V.: other. The general column one duty rate is 2.7 percent ad valorem.

NY K84357, dated April 16, 2004, is hereby affirmed.

Sincerely,

Myles B. Harmon, Director

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