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HQ 952716


March 3, 1993

CLA-2 CO:R:C:M 952716 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9025.11.40; 9506.99.55

Mr. Bruce N. Shulman
Mr. S. Richard Shostak
Stein, Shostak, Shostak & O'Hara
3580 Wilshire Boulevard
Suite 1240
Los Angeles, California 90010-2597

RE: Swimming Pool and Spa Thermometers; Reconsideration of PC 867514; heading 9025; Additional U.S. Note 1(c); Chapter 90, Note 1(ij); Chapter 95, Note 3; HQ 085895; HQ 950166

Dear Mr. Shulman and Mr. Shostak:

This is in response to your letter of September 10, 1992, on behalf of Blue Devil Industries, requesting reconsideration of PC 867514, dated October 31, 1991, which concerned the classification of swimming pool and spa thermometers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles in question consist of glass thermometer tubes, plastic cards which are printed with the calibrations in degrees Fahrenheit and Celsius, clear plastic or metal tubes, which contain clear plastic windows, and plastic plugs. Several models contain a string (some also contain a self-stick anchor) to facilitate hanging the thermometer from a swimming pool or spa wall, while others contain top plugs which afford them the ability to float on top of the water in a vertical position.

You have indicated that approximately 80-90 percent of all thermometers sold by Blue Devil Industries are used in pools. You also explained that the floating thermometers are more likely to be used in spas than in pools because they would be sucked into swimming pool skimmers.

In PC 867514, the swimming pool and spa thermometers were held to be classifiable under subheading 9025.11.40, HTSUS, which provides for other liquid-filled thermometers, for direct reading, not combined with other instruments. You contend that the thermometers are classifiable under subheading 9506.99.55, HTSUS, which provides for parts and accessories of swimming pools.

ISSUE:

Whether the thermometers in question are classifiable as accessories to swimming pools under heading 9506, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

You contend that the articles in question are classifiable as swimming pool accessories under heading 9506, HTSUS, rather than under the provision for thermometers found in Chapter 90. Chapter 90, note 1(ij) states that Chapter 90 does not cover articles of Chapter 95. Thus, if the thermometers are classifiable in Chapter 95, they cannot be classified in Chapter 90.

With regard to the classification of accessories, Additional U.S. Rule of Interpretation 1(c) states that "[i]n the absence of special language or context which otherwise requires . . . a provision for 'parts' or 'parts and accessories' shall not prevail over a specific provision for such part or accessory [underlining added]." In the instant case, the "special language or context" contemplated by the above rule exists.

Note 3 to Chapter 95 provides that "parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles." Thus, if the articles in question are accessories that are solely or principally used with an article of Chapter 95 (specifically, swimming pools of heading 9506, HTSUS), they must be classified under that heading, regardless of whether they are covered by a specific provision (thermometers of heading 9025, HTSUS) elsewhere in the tariff schedule.

The term "accessory" is not defined in either the HTSUS or in the Harmonized Commodity Description and Coding System Explanatory Notes. However, this office has stated that the term

"accessory" is generally understood to mean an article which is not necessary to enable the goods with which they are used to fulfill their intended function. They are of secondary importance, but must, however, contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). See HQ 950166, dated November 8, 1991.

This office has on several occasions considered the issue of what constitutes a swimming pool accessory. For example, in HQ 950166, we determined that a hinged plastic fin which attached to a pool cleaning brush was classifiable as a swimming pool accessory. In HQ 085895, dated November 11, 1989, we classified a roller system for swimming pool covers as a swimming pool accessory.

The thermometers in question, as did the plastic fin and roller system, contribute to the effectiveness of the principal article by allowing the user to determine the pool or spa's temperature before entering the water. Thus, the thermometers are accessories. It is now necessary to determine whether these accessories are suitable for use principally with the swimming pools of heading 9506, HTSUS.

The thermometers in question can be broken down into two groups: (1) those that are designed to hang freely by a string, and (2) those that are designed to float atop the water. It is our opinion that the thermometers designed to hang freely by a string are suitable for use principally with swimming pools. They are assembled in protective tubes to avoid breakage while hanging unprotected in the wet environment of pools. While it can be argued that the thermometers can be used in any "wet environment" including spas, you have indicated that 80-90 percent of them are in fact sold for use in pools. Thus, these thermometers are classifiable as swimming pool accessories.

On the other hand, you have indicated that floating thermometers are more likely to be used in spas than in pools. Thus, these thermometers are not suitable for use principally with swimming pools, and cannot be classified as swimming pool accessories. Because spas are not covered by heading 9506, HTSUS, which provides for swimming and wading pool accessories, nor any other heading of Chapter 95, note 3 to Chapter 95 does not apply.

Therefore, the floating thermometers are classifiable under heading 9025, HTSUS, which provides for thermometers. Specifically, they are classifiable under subheading 9025.11.40, HTSUS, which provides for liquid filled, direct reading, non- clinical thermometers. - 4 -

HOLDING:

The thermometers designed to hang freely by a string are classifiable under subheading 9506.99.55, HTSUS, which provides for ". . . swimming pools and wading pools; parts and accessories thereof . . . [o]ther . . . [s]wimming pools and wading pools and parts and accessories thereof." The corresponding rate of duty for articles of this subheading is 5.3% ad valorem.

The thermometers designed to float atop the water are classifiable under subheading 9025.11.40, HTSUS, which provides for ". . . thermometers . . . [t]hermometers and pyrometers, not combined with other instruments . . . [l]iquid-filled, for direct reading . . . [o]ther." The corresponding rate of duty for articles of this subheading is 8.4% ad valorem.

PC 867514, dated October 31, 1991, is hereby modified.

Sincerely,

John Durant, Director

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