CLA-2 RR:CR:GC 961127ptl
Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607-4523
RE: Protest 3901-97-101652, Clean Timers; HQ 085048, 085484, 953933.
Dear Port Director:
The following is our decision regarding protest 3901-97-101652 which concerns the classification of “clean timers” under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise under protest is a rectangular panel 3" high and 7" long, with several “touch pad” features. In the top center of the panel is a ¾" by 2¾" space with the capability to display the time in a four-digit light emitting diode (LED) style. Surrounding the time display area are six “touch pads” labeled: Hour, Minute, Clock, Timer, Clean Start and Clean Cancel. The articles are imported as complete units ready for installation in either gas or electric household ranges. The merchandise was entered in January and February of 1997, under subheading 9109.19.1010, HTSUS, as
clock movements, complete and assembled: electrically operated: other: with opto-electronic display only. The merchandise was classified by Customs under subheading 9107.00.8000, HTSUS, as time switches with clock or watch movement or with synchronous motor: valued over $5.00 each. The entries were liquidated in May of 1997 and a timely protest was filed on June 17, 1997.
ISSUE:
What is the proper classification of a “clean timer”?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 GRIs may then be applied in order.
The headings under consideration are as follows:
9107.00 Time switches with clock or watch movement
or with synchronous motor:
* * *
9107.00.8000 Valued over $5 each.
9109.00 Clock movements, complete and assembled:
Electrically operated:
* * *
9109.19 Other:
9109.19.1010 With opto electronic display only.
The protestant argues that the clean timer is a complete clock movement with an opto-electric display (LED) which should be classified under heading 9109, HTSUS. This argument is based upon the contention that the minute counter (timer function) and the clean cycle/automatic shut-off option (clean function) are independent, secondary options which have been incorporated into the clock movement. Thus, according to the protestant, the primary function of the article which gives it its essential character is the clock movement and it should be classified accordingly.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 91.09, page 1673, covering clock movements, states that “The movements of this heading are mainly intended for the goods of headings 91.04 to 91.07, but they remain classified here even if meant for incorporation in instruments or apparatus of other Chapters (measuring or precision instruments, meters, explosive devices, etc.).” We note that EN 91.07, page 1671, covering time switches with clock or watch movements, states that “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.”
EN 91.07 states further:
The heading also includes switches for making and breaking the circuit supplying electrical apparatus (television receivers, irons, washing machines, billiard table lights, etc.), switching on when coins are inserted and switching off through the action of a synchronous motor, the interval being determined by the number of coins inserted. (Emphasis in the original.)
While the EN specifically mentions coins as being the actuating factor, there is no requirement in the ENs that any particular action or element be used to start the timing interval of the switch. Pressing the touch pad on the surface of the panel can be as effective as inserting coins.
“Time switch” is not defined in the HTSUS or the ENs. A tariff term that is not defined in the HTSUS or in the EN's is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
In Admiral Division of Magic Chef, Inc. v. United States, 14 CIT 868, 874, 754 F.Supp. 881 (1990), the Court defined "time switch" based on its common meaning, adopting the definition in Webster’s Third New International Dictionary, 2395 (1986), as "an electric switch that automatically operates at a set time." The Court held that defrost timers for refrigerators, which make or break electric circuits by activating two sets of electrical contact points automatically upon the completion of some preset time interval and equipped with a synchronous or subsynchronous motor, are provided for eo nomine as "time switches", under the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS.
The HTSUS, which went into effect January 1, 1989, is a new tariff system with rules of interpretation and application somewhat different from the TSUS. As noted in House Conference Report No. 100-576, dated April 20, 1998, on the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100-418), decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.
In this case both the merchandise and the nomenclature of the tariff provisions lend themselves to similar interpretations under both tariff systems.
In HQ 085484, issued December 18, 1989, and HQ 085048, issued October 11, 1989, Customs held that electronic time switches for coffee makers which incorporated solid state electronic clock movement and light emitting diode digital display were classified as time switches in heading 9107, HTSUS. Similarly, in HQ 953933, issued August 10, 1993, Customs 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.
The article precisely meets the description of heading 9107, a time switch with clock or watch movement or with synchronous motor, and it is not a clock movement of heading 9109, although it incorporates as one of its components a clock movement (see the statement in EN 91.09 that “[t]he movements of this heading are mainly intended for the goods of headings 91.04 to 91.07 ...”). The article is classified in subheading 9107.00.8000, HTSUS, as a time switch with clock movement or with synchronous motor, valued over $5 each.
HOLDING:
The article described as a “clean timer” is classified in subheading 9107.00.8000, HTSUS, as a time switch with clock or watch movement or with synchronous motor, valued over $5 each.
The protest should be DENIED. 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 or entries in accordance with the decision must be accomplished prior to mailing 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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division