HQ 083674

June 22, 1989

CLA-2 CO:R:C:G 083674 KK

CATEGORY: Classification

TARIFF NO: 8537.10.00

Paul S. Anderson, Esq.

Sonnenberg, Anderson, O\'Donnell & Rodriguez

Attorneys & Counsellors at Law

200 West Adams Street

Suite 2625

Chicago, Illinois 60606

RE: Control panels/programmable controllers dedicated

for use in microwave ovens.

Dear Sir:

Your letter of January 23, 1989, requesting a binding

ruling under the Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), regarding the tariff classification of

certain subassemblies dedicated for use in microwave ovens was

referred to this office for a direct reply to you. We have also

received and reviewed your supplemental submission of May 17,

1989\.

FACTS:

The subject merchandise consists of a printed circuit board

with several discrete components contained thereon, a power

supply, a clock and a metal portion which is attached to the

circuit board. Both the circuit board and the metal portion are

dedicated solely for use in a microwave oven. The subassembly

contains the components which are essential to the oven\'s various

programming functions.

ISSUE:

Whether the subject merchandise is properly classifiable in

subheading 8537.10.00, HTSUS, which provides for \"\[b\]oards,

panels . . . for the electrical control or the distribution of

electricity . . . \[f\]or a voltage not exceeding 1,000 V . . .

\[p\]rogrammable controllers;\" or in subheading 8516.90.20, HTSUS,

which provides for \" . . . other electrothermic appliances of a

kind used for domestic purposes . . . parts thereof . . . \[p\]arts

. . . \[o\]f . . . ovens.\"

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LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is governed

by the General Rules of Interpretation (GRI\'s). GRI 1 provides

as follows:

The titles of sections, chapters and sub-

chapters are provided for ease of reference

only; for legal purposes, classification

shall be determined according to the terms of

the headings and any relative section or chap-

ter notes and, provided such headings or notes

do not otherwise require, according to the

following provisions.

Section XVI, Note 2, states in pertinent part:

\(a\) Parts which are goods included in any of

the headings of Chapter 84 and 85 . . . are in

all cases to be classified in their respective

headings;

\(b\) Other parts, if suitable for use solely or

principally with a particular kind of machine

. . . are to be classified with the machines

of that kind.

Section XVI, (II) Parts, (Section Note 2), states in pertinent

part:

. . . parts which in themselves constitute an

article covered by a heading of this Section

. . . are in all cases classified in their own

appropriate heading even if specially designed

to work as part of a specific machine. This

applies in particular to:

\(13\) Boards, panels . . . and other

apparatus for electrical control . . .

(heading 85.37).

In accordance with Section XVI, Note 2, if the subject

merchandise is properly described in heading 8537 as \"\[b\]oards,

panels . . . for electrical control,\" the same falls to be

classified in that heading. Also in accordance with Section XVI,

Note 2, if the subject merchandise is not properly described in

heading 8537, the same falls to be classified as \"\[p\]arts . . .

\[o\]f . . . ovens\" in subheading 8516.90.20, HTSUS.

Importer acknowledges that without the aforementioned metal

portion, the subject merchandise would be properly classifiable

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as \"programmable controllers\" in heading 8537. Importer further

suggests, that were the aforementioned printed circuit board

imported with a metal portion that functioned merely as

protection for the circuit board itself, the merchandise would

also be classifiable in heading 8537. However, importer contends

that insofar as the metal portion provides safety barriers and

structural integrity for microwave ovens, the articles as

imported are something other than programmable controllers.

We do not disagree with importers contention that

classification in this case ultimately turns on whether the metal

portion effectively takes the subject merchandise out of heading

8537\. In this regard, \"\[i\]t is well established that where

merchandise has a single or primary function and an incidental,

subordinate, or secondary function, the merchandise is

classifiable on the basis of its primary design, construction or

function.\" F.W. Myers, Inc. V. United States, No. 88-78, slip

op. at 14 (CIT, June 16, 1988). The question of whether a given

function is secondary or coequal is one of fact. Tridon, Inc. v.

United States, 5 CIT 167 (1983). Similarly, \"an incidental,

subordinate, or secondary function which relates to an article\'s

predominant use, does not make that article \'more than\' the

article named in the tariff provisions.\" A & A International,

Inc. v. United States, No. 87-117, slip op. at 19 (CIT, October

29, 1987).

In support of the view that the subject articles are \"more

than\" programmable controllers, importer cites United States v.

The A.W. Fenton Company, Inc., 49 CCPA 46, CAD 794 (1962), a case

in which the court held that an electric motor, in assembled

relationship with a gear assembly and a frame that constituted a

housing for the brushes of a floor polisher, was \"more than\" a

\"motor.\" In so holding, the court noted at 49 that the article\'s

\"additional features . . . do more than make it a special type of

motor. They dedicate it to one particular use as a part of a

floor polisher. Since it is more than a motor, it is not

properly classifiable as a motor for tariff purposes.\"

We believe Fenton is readily distinguishable, since in this

case, the metal portion which is attached to the circuit board

does not constitute a feature which dedicates the imported

control panel to one particular use as a part of a microwave

oven. Even without the metal portion, the control panel is

dedicated for use in a microwave oven. While it can be said that

the metal portion is designed to enhance the structural integrity

of the article in which the control panel assembly is

incorporated, it is also the case that the imported assembly is

essentially a control panel attached to a metal frame that

protects the control panel itself, and by definition, the article

in which the control panel assembly is ultimately incorporated.

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In the past, importer has imported printed circuit boards

containing the same component parts contained in the instant

merchandise (except with differently designed metal portions).

These importations were classified as control panels in item

685.90, TSUS. Importer notes that due to certain technological

advances, it has become cost effective to import the printed

circuit boards and the metal portions as assembled units.

Instructive in this regard, was the court\'s reasoning in

A & A International, Inc. v. United States, No. 87-117, slip op.

(CIT Oct. 29, 1987). In holding that \"equalizer/boosters\" were

not more than \"audio-frequency electric amplifiers,\" the A & A

International court stated at 21, that \"\[w\]hen the difference in

an article is in the nature of an improvement, and the essential

character is preserved or only incidentally altered, the

statutory designation of the article still applies and determines

its Customs classification.\"

We also note our ruling April 8, 1986 (554010). In that

ruling, we determined that programmable microprocessor oven

control units with attached metal chassis were properly

classifiable as control panels in item 685.90, TSUS. For

purposes of tariff classification, we do not believe that the

metal chassis in that case differ from the metal chassis in the

instant case.

We disagree, therefore, with importer\'s assertion that the

\"core issue pertains to the reason there is such a mounting of

the panel.\" Even assuming arguendo, that Customs could from a

practical and administrative standpoint distinguish between metal

chassis designed to provide structural integrity for control

panels of microwave ovens, and metal chassis designed to provide

safety barriers and structural integrity for the microwave ovens

in which said control panels are incorporated, this distinction

would not provide a basis for classifying one type of importation

in heading 8537 and the other in heading 8517. Simply put, such

a distinction would not alter the fact that the essential use of

control panels with attached metal chassis dedicated for use in

microwave ovens, is electrical control of those ovens.

It is our opinion then, that while the attached metal

portions are designed to provide safety barriers and structural

integrity for the microwave ovens in which the control panel

assemblies are incorporated, these functions do not constitute

\"co-equal\" functions. Rather, these functions fall within the

rule of law set forth above in F.W. Myers \-- to wit, \"that where

merchandise has a single primary function and an incidental,

subordinate or secondary function, it is classifiable on the

basis of its primary design, construction and function.\"

Accordingly, by operation of GRI 1, the subject merchandise is

properly classifiable as \"\[p\]rogrammable controllers\" in heading

8537, HTSUS.

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HOLDING:

In view of the foregoing, the subject merchandise is

properly classifiable in subheading 8537.10.00, HTSUS, which

provides for \"\[b\]oards, panels . . . for electric control . . .

\[f\]or a voltage not exceeding 1,000 V . . . \[p\]rogrammable

controllers,\" dutiable at the rate of 5.3 percent ad valorem.

Sincerely,

John Durant, Director

Commercial Rulings Division