CLA-2 CO:R:C:G 084296 CMS
District Director Of Customs
423 Canal Street, Ste. 337
New Orleans, LA 70130-2341
RE: Protest For Further Review No. 2002-6000319; Microprocessor
Based Control Units For Microwave Ovens
Dear Sir:
This Protest was filed against your liquidation dated March
21, 1986, in which certain microwave oven control panels imported
by Toshiba Corp. were classified as control panels in Item
685.90, TSUS.
FACTS:
The merchandise consists of three models of "microprocessor
controlled timer units" for microwave ovens. The articles are
assemblies of integrated circuit boards mounted on metal chassis,
and incorporate microprocessors, LED indicators, relay wiring,
membrane touch pads used to activate oven functions, and other
elements which assist in the programming of oven functions.
All three models feature programmable power level and time
settings. The microprocessors incorporate independent minute
timers. The LED's and beepers indicate cooking time, power
level, time remaining and the lapsing of the preset time. The
intermediate model additionally has a temperature probe and
features automatic defrost, programmable power level and
automatic shutoff according to the internal temperature of the
food being heated or cooked. The advanced model additionally
features heat, hold and memory settings. The memory setting can
be used to program the oven to perform up to four consecutive
functions, and to delay the start of cooking for a preset time.
ISSUE:
Is the merchandise classified as control panels in Item
685.90, or as parts of electro-thermic household appliances in
Item 684.28?
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LAW AND ANALYSIS:
Microwave oven control units have been the subject of
several headquarters rulings. In HQ Ruling 554010 (April 8,
1986), currently under appeal with Court of International Trade,
the merchandise consisted of microwave oven "microprocessor/oven
control/timer units". The units incorporated a probe thermostat
function, timer function and clock function. We found that all
the units' principal components worked to the same end which was
the electrical control of microwave ovens. We held that the
units were classified in Item 685.90 as control panels. Even the
automatic functions of the articles were performed at the
direction of the operator. The purpose of the units was to
permit the operator to control the quantity of heat produced by
the oven for a given period of time.
Similarly, we held in HQ Ruling 067551 (February 5, 1982),
that microwave oven panels incorporating microprocessors, touch
pads for programming cooking time and temperature, a clock and
beeper were classified as control panels in Item 685.90. See
also HQ Ruling 071563 (March 7, 1985), and HQ Ruling 071823
(March 20, 1985), where microprocessor based programmable
controllers were classified as control panels in Item 685.90.
The protestor presents three arguments as to why the
articles should not be classified as control panels: 1) the
articles are not described as "control panels", 2) the articles
are "more than" control panels, and 3) classification of the
articles as control panels "violates an established and uniform
practice of the Customs Service".
The first argument relies on the Explanatory Notes to
Heading 85.19 of the Brussels Tariff Nomenclature (BTN). The
protestor states that TSUS Item 685.90 "is derived from, and
tracks" the language of BTN Heading 85.19. The protestor
interprets the BTN Explanatory Notes to define control panels as
articles which contain "componentry which would be separately
classifiable as simple electrical apparatus" (emphasis added).
The same argument was considered and rejected in HQ Ruling
554010, supra, which stated "[a]lthough the components are
apparently more sophisticated than those given by the Brussels
Nomenclature as some examples of the apparatus within an
assembly, they do no more than simply permit operations that are
fundamental to a control panel." An eo nomine designation
generally includes all forms of an article. T. M. Duche & Sons,
Inc. et al. v. United States, 44 CCPA 60, C.A.D. 638 (1957).
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Further, tariff acts are made for the future as well as the
present and are intended to embrace new articles not in
existence at the time of passage, as long as the articles possess
an essential resemblance to the characteristics as described by
the tariff provision. Texas Instruments Inc. v. United States, 1
CIT 236, 518 F. Supp. 1341 (1981), aff'd. 673 F. 2d 1375. The
"control panels" under consideration possess an essential
resemblance to the control panels described by Item 685.90. The
article description for Item 685.90 does not limit "control
panels" to those comprised of certain specific electrical
components. Additionally, microprocessors and the "simple
electrical apparatus" described by Item 685.90 are electrical
articles; microprocessor based control panels are essentially an
improvement over control panels comprised of "simple electrical
apparatus".
The protestor cites HQ Rulings 071434 (October 20, 1983),
and 067915 (August 23, 1982) for the position that dedicated
integrated circuitry incorporating a substantial portion of the
machine controlled is not a "control panel". The rulings cited
are inapposite. In Ruling 071434 the merchandise was a ROM
software cartridge. The Ruling simply found that the cartridge
was more than an integrated circuit and was thus classified as a
part of a computer. The question of whether an article with
control functions was classified as an Item 685.90 "control
panel" was neither discussed nor decided. Ruling 067915 is
inapplicable because the merchandise there merely performed
signal "integration" and "translation", not control functions.
The control panels under consideration do not contain any
components which heat or cook food, and do not incorporate a
substantial portion of the ovens they control.
The second argument presented by the protestor is that the
microwave controllers are "more than" control panels because
they incorporate components which transform the merchandise into
something more than control panels. However, a TSUS Item 685
article is not "more than" that article when it has auxiliary
components, or components which are primarily and directly
related to the function of the TSUS Item 685 article. Craig
Corporation v. United States, 75 Cust. Ct. 161, 162, (2 cases)
(1975). The thermostat, timer, clock and memory features of the
microwave controllers do no more than simply permit operations
which are fundamental to an Item 685.90 control panel. Where
merchandise has a primary function and an incidental,
subordinate, or secondary function, it will be classified on the
basis of its primary design, construction and function. The
Ashflash Corporation v. United States, 76 Cust. Ct. 112, C.D.
4643, 412 F. Supp. 585 (1976).
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The protestor cites Harper Wyman Co. v. United States, 1 CIT
108 (1981), Fedtro, Inc. v. United States, 449 F. 2d 1395 (CCPA
1971), and All Channel Products Corp. v. United States, 1 CIT 128
(1981), in support of the position that the controllers are "more
than" control panels. The cited cases are inapposite. The
question in the three cases was whether assemblies of switches
with other articles were more than switches. Control panels by
their very nature are assemblies of several components which can
perform functions more diverse than switching. Unlike the
merchandise in the three cited cases, the microwave controllers
under consideration are assemblies which are not transformed into
something more than control panels. The various components which
comprise the assemblies do no more than permit operations
fundamental to control panels.
The third argument submitted by the protestor is that there
is a "uniform and established practice" of classifying
protestor's merchandise as parts of microwave ovens, and this
practice cannot be changed without providing certain notice and
satisfying other requirements provided for in the Customs
Regulations. The protestor states that the basis for the
"uniform and established practice" is the past treatment of the
protestor's merchandise at the Port of New Orleans.
The protestor has not established the existence of a uniform
and established practice by merely relying on the treatment of
one importer's entries at one port. More substantial treatments
of entries have not resulted in the finding of uniform and
established practices, e.g., United States v. H. Reeve Angel &
Co., Inc., 33 CCPA 114 (1946) (2 importers' entries at 2 ports);
Siemens America, Inc., et al. v. United States, 2 CIT 136, aff'd.
692 F. 2d 1382 (1981) (a classification ruling letter and 100
subsequent entries); Washington Handle Co. v. United States, 34
CCPA 80 (1946) (28 shipments at 2 ports).
The articles under consideration are described as Item
685.90 "control panels". The articles are not "more than"
control panels. The protestor has not established the existence
of a uniform and established practice for the classification of
the microprocessor controlled timer units as parts of microwave
ovens in Item 684.28, TSUS.
HOLDING:
The "microprocessor controlled timer units" are classified
as control panels in Item 685.90, TSUS. A similar issue is
pending in the Court of International Trade in Motorola, Inc. v.
United States, Court No. 88-08-00577. You may choose to withold
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action on the protest pending the outcome of the Motorola case.
If you choose to act at this time the protest should be denied
and a copy of this decision should be attached to the Form 19
Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division