HQ 0088731 - Protest and Request for Further Review No. 3701-90-000060, dated October 19, 1991; tap changers; electrical transformers; electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits and parts thereof; Section XVI, Note 2 - United States International Trade Commision Rulings

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HQ 088731

May 7, 1991

CLA-2 CO:R:C:M 088731 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.:

8535.90.00; 8538.90.00

District Director
U.S. Customs Service
6929 Ace Industrial Dr.
P.O. Box 37260
Milwaukee, WI 53237-0260

RE: Protest and Request for Further Review No. 3701-90-000060, dated October 19, 1991; tap changers; electrical transformers; electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits and parts thereof; Section XVI, Note 2

Dear Sir:

This is in response to Protest and Request for Further Review No. 3701-90-000060, dated October 19, 1991, regarding the classification of certain tap changers imported from France by ABB Power. Our response follows.

FACTS:

The articles in question are tap changers and their components for use with electrical transformers. The technical literature submitted with the protest indicates that the tap changer is a current interrupter that is based on the principal of rapid switching. The literature states that "[t]he tap changer is of the selector switch type which means that all makings and breakings take place between the fixed and moving contacts of the selector switch..."

The importer believes that the tap changers are properly classified in subheading 8504.90.00, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as "Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof...Parts..." Your office liquidated the tap changers in subheading 8535.90.00, HTSUSA, as "Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example,
switches, fuses,lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 V...Other..." The protest arises from this classification.

ISSUE:

Whether the tap changers are properly classified in subheading 8504.90.00, HTSUSA, as "Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof...Parts...", or in subheading 8535 90 00 HTSUSA, as "Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses,lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 V...Other..."

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes..." The headings in contention are headings 8504 and 8535, HTSUSA. These headings describe the following:

8504 Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof...

8535 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits
(for example, switches, fuses,lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 V...

Both headings 8504 and 8535 are within Chapter 85 and Section XVI. The only relevant section or chapter note is Section XVI, Note 2, HTSUSA. Section XVI, Note 2 states that parts of machines described by the heading of Chapters 84 and 85 are to be classified according to the following:

(a) Parts which are goods included in any headings of chapter 84 and 85 (other than heading 8485 and 8548) 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, or with a number of machines of the same heading...are to be classified with the machines of that kind...;

(c) All other parts are to be classified in heading 8485 or 8548.

According to Section XVI, Note 2(a), if a part of a machine classified in Chapter 84 and 85 is described by any heading of those chapters, then that part must be classified in its own respective heading. The tap changers are used with electrical transformers. Transformers are described by heading 8504, a chapter 85 heading. However, the tap changers connect, break and switch electrical circuits, and thus, are specifically described by heading 8535. The tap changers are parts used with a machine which is classified in Chapter 85, and the parts are specifically included in heading 8535. Thus, according to Section XVI, Note 2(a), the tap changers must be classified under heading 8535. The proper classification for the tap changers is in subheading 8535.90.00, HTSUSA, as "Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses,lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 V... Other..."

Components of the tap changers are considered parts of the tap changers, and not parts of the transformers. If the components are specifically described by a heading in Chapters 84 or 85, then in accordance with Section XVI, Note 2(a), those components would be classified in their respective headings. If the tap changers parts are not described by a specific heading then Section XVI, Note 2(b), HTSUSA, is implemented and the parts are to be classified with the tap changers in heading 8535. However, heading 8535 does not include a subheading for parts. Parts of articles classified in heading 8535 are specifically classified in heading 8538, HTSUSA, as "Parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537..." The proper classification for parts of the tap changers is in subheading 8538.90.00, HTSUSA, as "Parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537...Other..."

HOLDING:

The tap changers, in accordance with GRI 1 and Section XVI, Note 2(a), are properly classified in subheading 8535.90.00, HTSUSA, as "Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in
electrical circuits (for example, switches, fuses,lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 V... Other..."

Parts of the tap changers are classified in their respective headings within Chapter 84 and 85, in accord with GRI 1 and Section XVI Note 2(a). If no heading specifically describes the parts, then the parts of the tap changers are classified in subheading 8538.90.00, HTSUSA, as "Parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537...Other..."

The protest should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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