HQ 954408: IA 48/93; AC Motor Drives; EN's 85.04(II) and 85.37; HQ's 082654 and 087499; NY 850743; Items 682.60 and 685.90; 8537.10.00

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 954408
                        January 19, 1994


CLA-2 CO:R:C:M 954408 DWS

CATEGORY: Classification

TARIFF NO.: 8504.40.00

Area Director
U.S. Customs Service
Building #77, JFK Airport
Room: 228
Jamaica, NY 11430

RE: IA 48/93; AC Motor Drives; EN's 85.04(II) and 85.37; 
    HQ's 082654 and 087499; NY 850743; Items 682.60 and
    685.90; 8537.10.00

Dear Area Director:

     This is in response to your memorandum of May 27, 1993 
(CLA-2-K:C:A1 MB), relating to a request for internal advice
initiated by a letter dated March 18, 1993, from Barnes, Richardson
& Colburn, on behalf of Square-D Company, concerning the
classification of AC motor drives under the Harmonized Tariff
Schedule of the United States (HTSUS).

FACTS:

     The merchandise consists of "Omegapak" AC motor drives (Class
8803 Type P).  They are electrical devices designed to supply AC
electricity corresponding to a smooth sinusoidal wave-form at
variable voltages and frequencies.  Such electricity can be used
to accurately power an electrical motor at variable speeds while
maintaining constant torque.  The drive is comprised of a DC supply
obtained from a bridge rectifier fed by three-phase AC input lines,
a filter capacitor circuit, an inverter consisting of six power
transistors, and a microprocessor.  The rectifier converts AC
electricity into DC electricity.  The DC supply is then filtered
in the capacitor circuit and passed through the inverter to produce
regulated AC electricity.  

     The microprocessor provides frequency control through a
feedback loop.  Based upon signals from sensors, the microprocessor
monitors the voltage, frequency, and current of the output, and
makes adjustments to maintain the desired motor performance.  This
control is performed from a local keypad.  It is our understanding
that, in actual applications, control is often accomplished through
the use of an external programmable logic controller (PLC).  The
PLC is a computer equipped with sensors to monitor the operations
of the processes which are driven by the motor and an interface to
provide feedback to the AC motor drive.

     The AC motor drives are for use in industrial applications
which require that a motor operate at a constant torque. 
Applications for these drives include conveyor machines, pumps,
grinders, and saws.

     The subheadings under consideration are as follows:

     8537.10.00: [b]oards, panels (including numerical control
                 panels), consoles, desks, cabinets and other
                 bases, equipped with two or more apparatus of
                 heading 8535 or 8536, for electric control or
                 the distribution of electricity, including 
                 those incorporating instruments or apparatus
                 of chapter 90, other than switching apparatus
                 of heading 8517: [f]or a voltage not exceeding
                 1,000 V.

     The general, column one rate of duty for goods classifiable 
     under this provision is 5.3 percent ad valorem.

     8504.40.00: . . . static converters (including rectifiers)
                 . . . : [s]tatic converters.

     The general, column one rate of duty for goods classifiable 
     under this provision is 3 percent ad valorem.

ISSUE:

     Whether the AC motor drives are classifiable under subheading
8537.10.00, as control circuits, or under subheading 8504.40.00,
HTSUS, as static converters.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's), taken in order. 
GRI 1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.

     In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized.  The Explanatory Notes, although not dispositive, are to
be used to determine the proper interpretation of the HTSUS.  54
Fed. Reg. 35127, 35128 (August 23, 1989).  In part, Explanatory
Note 85.04(II) (p. 1338) states:

                (II) ELECTRICAL STATIC CONVERTERS

     The apparatus of this group are used to convert electrical
     energy in order to adapt it for further use.  They 
     incorporate converting elements (e.g., valves) of different
     types.  They may also incorporate various auxiliary devices
     (e.g., transformers, induction coils, resistors, command
     regulators, etc.).  Their operation is based on the         
      principle that the converting elements act alternately as  
       conductors and non-conductors.

     The fact that these apparatus often incorporate auxiliary
     circuits to regulate the voltage of the emerging current
     does not affect their classification in this group, nor
     does the fact that they are sometimes referred to as voltage
     or current regulators.

     This group includes:

     (A) Rectifiers by which alternating current (single or
         polyphase) is converted to direct current, generally
         accompanied by a voltage change.

     (B) Inverters by which direct current is converted to
         alternating current.

     It is our position that, based upon the description given in
Explanatory Note 85.04(II), the subject AC motor drive, which
includes a rectifier and an inverter, is classifiable as a static
converter.  The purpose of the merchandise is to convert electrical
energy in order to adapt it for further use.  The AC motor drive
does possess a microprocessor which regulates the voltage of the
emerging current.  However, as Explanatory Note 85.04(II) makes
clear, the incorporation of auxiliary circuits to regulate voltage
does not preclude the classification of the merchandise under
heading 8504, HTSUS.  The fact that, in actual applications, the
voltage regulation function can be handled by exterior controllers
lends credence to this position.

     In HQ 082654, dated July 28, 1989, a speed control voltage
regulator for a sawing machine, consisting of various components
including a printed circuit board assembly and a rectifier, was
held to be classifiable under item 682.60, Tariff Schedules of the
United States (TSUS), which, in part, provides for: " . . .
converters (rotary or static) . . . rectifiers and rectifying
apparatus . . . "  As the HTSUS was enacted on January 1, 1989,
for HTSUS purposes, the speed control was also held to be
classifiable under subheading 8504.40.00, HTSUS.  As the
merchandise in HQ 082654 possessed a printed circuit assembly, the
other provision at issue was the predecessor to heading 8537,
HTSUS, item 685.90, TSUS, which, in part, provides for:
"[e]lectrical switches, relays, fuses . . . and other electrical
apparatus for making or breaking  electrical circuits, for the
protection of electrical circuits, or for making connections to or
in electrical circuits; switchboards and control panels 
. . . "  In HQ 082654, it was held that the speed control was not
"more than" a rectifier or rectifying apparatus, and could not
therefore be classifiable under item 685.90, TSUS, even though it
possessed a printed circuit board assembly.

     Decisions under the TSUS are not dispositive in interpreting
the HTSUS.  However, on a case-by-case basis they 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.  H. Conf. Rep. No. 576, p.550.

     It is our position that the holding in HQ 082654 is direct
precedent in the classification of the subject merchandise under
the HTSUS, in that the nomenclature interpreted in HQ 082654 has
remained unchanged and no dissimilar interpretation is required by
the text of the HTSUS.  Just as in HQ 082654 where it was held that
the speed control, containing a printed circuit board assembly, was
not "more than" a rectifier or rectifying apparatus, the subject
AC motor drive is classifiable as a static converter even with the
presence of the microprocessor, as directed by Explanatory Note
85.04(II).  In fact, the speed control in HQ 082654 was held to be
classifiable under subheading 8504.40.00, HTSUS.

     It is claimed that the AC motor drive is classifiable under
subheading 8537.10.00, HTSUS, because it operates as a control
circuit.  In part, Explanatory Note 85.37 (p. 1391) states that:

     [t]hese consist of an assembly of apparatus of the kind
     referred to in the two preceding headings (e.g., switches
     and fuses) on a board, panel, console, etc., or mounted in a
     cabinet, desk, etc.  They usually also incorporate meters,
     and sometimes also subsidiary apparatus such as             
      transformers, valves, voltage regulators, rheostats or 
     luminous circuit diagrams.

     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:

     (1) - (2) xxx

     (3) "Programmable controllers" which are digital apparatus  
          using a programmable memory for the storage of
         instructions for implementing specific functions such as
         logic, sequencing, timing, counting and arithmetic, to 
         control, through digital or analog input/output modules,
         various types of machines.

     It is our position that the AC motor drive is not classifiable
under subheading 8537.10.00, HTSUS, and is not described under
Explanatory Note 85.37.  The merchandise does possess a
microprocessor, however, for the reasons stated above, the entire
AC motor drive is classifiable under subheading 8504.40.00, HTSUS. 


     It is claimed that NY 850743, dated April 5, 1993, and HQ
087499, dated October 9, 1990, are dispositive as to the
classification of the merchandise under subheading 8537.10.00,
HTSUS.  However, based upon an analysis of both rulings, neither
NY 850743, which involved the classification of a servo motor and
transistor drive, nor HQ 087499, which involved the classification
of Tachyprocessor speed control unit, deal with merchandise which
are in the same class or kind of articles as the subject AC motor
drive.  This determination is made even stronger in view of HQ
082654, which is directly on point concerning the classification
of the subject merchandise under the HTSUS.  

HOLDING:

     The AC motor drives are classifiable under subheading
8504.40.00, HTSUS, as static converters.

     This decision should be mailed by your office to the internal
advice requester no later than 60 days from the date of this
letter.  On that date, the Office of Regulations and Rulings will
take steps to make the decision available to Customs 
personnel via the Customs Ruling Module in ACS and the public via
the Diskette Subscription Service, Lexis, Freedom of Information
Act, and other public access channels.

                           Sincerely,



                            John Durant, Director