CLA-2 RR:CR:GC 961212 JAS
Port Director of Customs
#1 La Puntilla Street
San Juan, PR 00901
RE: PRD 4909-97-100048; Vibrator Motors, Motor Vibrators; DC Electric Motor With Internal Eccentric Vibrating Disc; Silent Alert Vibrator in Radio Pagers; Electric Motor; Machines and Mechanical Appliance, Heading 8479; Section XVI, Note 2, Nidec Corporation v. U.S.; HQ 950834;
PC 894322 Modified
Dear Port Director:
This is our decision on Protest 4909-97-100048, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain vibrator motors, products of Japan. The entries under protest were liquidated on June 6 and July 7, 1997, and this protest timely filed on September 2, 1997.
Counsel for the protestant presented additional factual and legal arguments at a meeting in our office on October 15, 1998. These were confirmed in a written submission, dated December 18, 1998.
FACTS:
The merchandise under protest is referred to variously as vibrators, pager vibrators, vibrator motors, and pager vibrator motors. The models under protest are identified as a cylindrically-shaped component, part 5905046H04, and a pancake-type component, part 5962882F02. Each consists of a small rotary DC electric motor to which is attached, either internally or externally, an eccentric or off-center counterweight or disc, attached to a shaft.
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Miniature, microcomputer-controlled, battery-operated FM receivers, or pagers, normally have, among available features, a “silent alert” function. In this mode, when a page is received the motor in the device activates an alert lamp and simultaneously converts electrical energy into mechanical power which causes the shaft to rotate, thus turning the counterweight and causing it to vibrate.
Your office liquidated the entries under a provision in heading 8501, HTSUS, for electric motors. Counsel for the protestant maintains that a preclassification decision, PC 894322, issued to the importer/protestant on February 4, 1994, classified different models of the same vibrator motor as other machines and mechanical appliances, in subheading 8479.89.90 (now 95), HTSUS. PC 894322, which the District (now Port) Director of Customs, Savannah, issued to the importer/protestant on February 4, 1994, classified five (5) vibrator motors or motor vibrators, among other parts or components, in subheading 8479.89.90, HTSUS, as machines and mechanical appliances, not specified or included elsewhere in [chapter 84].
Substantively, counsel contends that heading 8479 represents the correct classification because these vibrator motors perform an individual function (i.e., vibration) separate from that of the pager, but only by being mounted to or incorporated in the pager, and they are not more specifically provided for in any other heading of the Nomenclature. Counsel concedes that electric motors may incorporate additional components yet remain in heading 8501, but cites a Headquarters ruling outlining criteria for classification in that heading. Counsel concludes the vibrator motors satisfy none of these criteria. Finally, if heading 8501 is found to apply, counsel maintains that for purposes of relative specificity under GRI 3(a), HTSUS, heading 8479, a “use” provision, prevails over heading 8501, an eo nomine provision.
The provisions under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:
Other machines and mechanical appliances:
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8479.89 Other:
8479.89.95 (now 97) Other
* * * *
8501 Electric motors and generators (excluding generating sets):
8501.10 Motors of an output not exceeding 37.5 W:
8501.10.40 Other, with output of under
18.65 W
ISSUE:
Whether an electric motor with an eccentric counterweight attached to a shaft is a good of heading 8501.
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). GRI 1 states in part that the terms of the headings and any relative section or chapter notes control and, provided the headings or notes do not require otherwise, by application of GRIs 2 through 6 as appropriate.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. The ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Counsel cites HQ 950834, dated March 6, 1992, and rulings referenced therein, for the proposition that an additional component attached to or incorporated in an electric motor must complement the function of the motor, be a device with which motors are commonly equipped, or must transmit the power the motor produces. Counsel argues that the subject vibrator motor satisfies none of these criteria. We disagree with counsel’s
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conclusion because HQ 950834 merely summarized existing rulings on heading 8501 and announced “guidelines” which, as such, were not intended to define the entire scope of that heading.
Vibrator motors are integral parts of FM receivers or pagers. Goods that are identifiable parts of machines or apparatus of Chapters 84 or 85 are classifiable in accordance with Section XVI, Note 2, HTSUS. Note 2(a) states, in relevant part, that parts which are goods included in any of the headings
of Chapter 84 or Chapter 85 are in all cases to be classified in their respective headings. We recognize that vibrator motors with eccentric discs fitted to protruding ends of the shaft are described under (I) MACHINERY OF GENERAL USE on p. 1423 of the 84.79 ENs. They transmit radial vibrations to apparatus or appliances such as chutes, bins, hoppers, conveyors, compacting appliances, to which the vibrator motor is fixed. These are large vibrator motors used in industrial applications as opposed to the ones in issue here which are used in personal electronic devices. More importantly, heading 8479 is restricted to machines and machinery not excluded from Chapter 84 by an applicable legal note, and which are not covered more
specifically by any other heading in the HTSUS. Therefore, if the vibrator motors in issue here are provided for in heading 8501, they must be classified in that heading.
The 85.01 ENs, at p. 1444, in discussing rotary motors that produce mechanical power in the form of a rotary motion, state that except for starter motors for internal combustion engines, the heading covers electric motors of all types. The ENs make it clear that electric motors remain in heading 8501 even when equipped with a variety of other components. For example, the ENs include within heading 8501 outboard motors, for the propulsion of boats, in the form of a unit comprising an electric motor, shaft, propeller and a rudder. Thus, an electric motor with a shaft that transmits energy to an output device (the propeller), is within the scope of heading 8501. The vibrator motors in issue, each have a shaft which transmits power to an output device, in this case the counterweight. In addition, heading 8501 defines electric motors eo nomine, by name. Such designations, without limitation or a shown contrary legislative intent, judicial decision, or administrative practice, will normally include all forms of the article. We conclude that heading 8501 describes the vibrator motors in issue.
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Counsel’s relative specificity argument under GRI 3(a) has merit only if two or more provisions are found to be in competition. But, as previously stated, the 8479 ENs, at p. 1422, restrict that heading to machinery that is not covered more specifically by a heading in any other Chapter of the Nomenclature. Because we have found that heading 8501 describes
the merchandise in issue, heading 8479 is eliminated from competition. Goods that are identifiable as parts of machines or apparatus of Chapter 84 or Chapter 85 are classifiable in accordance with Section XVI, Note 2, HTSUS. See Nidec Corporation v. United States, 861 F. Supp. 136, aff'd. 68 F. 3d 1333 (1995). Parts which are goods included in any of the headings of Chapters 84 and 85 are in all cases to be classified in their respective headings. See Note 2(a). We remain of the opinion that under GRI 1, Section XVI, Note 2(a) is the exclusive legal authority for classifying the vibrator motors in issue.
HOLDING:
Under the authority of GRI 1, the vibrator motors or motor vibrators in issue, designated parts 5962882FO2 and 5905046HO4, are provided for in heading 8501. They are classifiable in subheading 8501.10.40, HTSUS. PC 894322, dated February 4, 1994, is superseded with respect to vibrator motor part 5905046HO3, motor vibrator part 5962882A01, motor vibrator part 5962882B01, vibrator motor part AARN4032A and vibrator motor kit part NRN9721A.
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