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HQ 957106




July 18, 1995

CLA-2 R:C:M 957106 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9107.00.80

Mr. Allan H. Kamnitz
Mr. Duncan A. Nixon
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, New York 10004

RE: Outdoor photoelectric timer; PC 898778 affirmed; heading 8536; EN 91.07; Add. U.S. Note to chapter 91; HQs 950286, 953933, 954491, 955727; GRI 3

Dear Mr. Kamnitz and Mr. Nixon:

This is in response to your letter of September 30, 1994, on behalf of Woods Wire Products, Inc., requesting reconsideration of PC 898778, dated June 14, 1994, which concerned the classification of an outdoor photoelectric timer under the Harmonized Tariff Schedule of the United States (HTSUS). Consideration was also given to your supplemental submission of March 27, 1995, in preparing this ruling.

FACTS:

The article in question is an outdoor photoelectric timer (model 2001), which is a mechanism containing a photocell that activates outdoor lights by sensing darkness. The article can be set to permit outdoor fixtures to remain illuminated until the sun rises (the "Dusk to Dawn" setting) or for a prescribed number of hours (2, 4, 6 or 8) after darkness. In either application, the photocell activates a switch that turns on the outdoor lights connected to the timer.

You state that when the unit is in the predetermined duration mode, it acts as a counter, not a timer. The electronic circuit contains a capacitor which produces electric pulses as it charges and discharges. The capacitor is connected to the integrated - 2 -
circuit which counts the number of pulses generated by the capacitor, not the duration of the pulses. Once the number of pulses, which is equated to the setting on the front housing knob, has been reached, a relay switch is activated that extinguishes the outdoor lights. The setting knob remains stationary during the counting process.

When the timer is in the "Dusk to Dawn" setting, the pulse counter is totally by-passed. After the photocell activates the outdoor lights, the number of pulses generated by the capacitor are merely counted until the sun rises and the lights are switched off.

ISSUE:

Whether the outdoor photoelectric timer is classifiable as a switch under heading 8536, HTSUS, or as a time switch with clock or watch movement or with synchronous motor under heading 9107, 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 . . . ."

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

In PC 898778, issued June 14, 1994, by the District Director of Customs, Cleveland, Ohio, the outdoor photoelectric timer was held to be classifiable under subheading 9107.00.80, HTSUS, which provides for time switches with clock or watch movement or with synchronous motor valued over $5 each. You contend that the timer is classifiable under subheading 8536.50.80, HTSUS, which provides for other switches.

The timer can be set to permit outdoor fixtures to remain illuminated until the sun rises (the "Dusk to Dawn" setting) or for a prescribed number of hours (2, 4, 6 or 8) after darkness. When the device is in the "Dusk to Dawn" mode, the operation is entirely photoelectric. The device operates as a photoelectric switch, and is therefore prima facie classifiable as a switch under heading 8536, HTSUS. See HQ 950286, dated February 11, 1992 (wherein a photocontrol unit consisting of a thermal relay - 3 -
switch, photocell and metal oxide varistor in a plastic housing, was classified as a switch under heading 8536, HTSUS).

With regard to the predetermined duration mode (2, 4, 6 or 8 hours), EN 91.07, pg. 1547, provides as follows:

This heading covers devices which do not have the character of clocks of heading 91.05, but are mainly designed to make or break electric circuits automatically at given times, usually at times determined according to a previously established daily or weekly programme. To be included in this heading these devices must have a movement of the watch or clock type (including secondary or synchronous motor clock movements) or a synchronous motor with or without reduction gear.

Time switches are used for the control of lighting circuits . . . . They consist essentially of a mechanical or electric movement of the watch or clock type or a synchronous motor, usually a dial with or without hands, a time-regulating device (levers and pins), together with systems of driving relays, switches, and commutators. The whole is enclosed in a case with terminals. The dial is usually marked in hours and sometimes also in days and months; levers or pins around its periphery actuate the contact devices at the desired times [emphasis in original].

The timer in question, when set for 2, 4, 6 or 8 hours, is designed to "make" an electric circuit when the sun goes down, and to "break" an electric circuit after the passage of the prescribed number of hours. The timer is used to control lighting circuits and consists of a dial marked in hours, without hands, a time-regulating device (counter) and switches. You argue, however, that the device is not a "time switch" because it does not consist of a mechanical or electric clock or watch movement.

Note 3 to chapter 91, HTSUS, defines watch movements as "devices regulated by a balance wheel and hairspring, quartz crystal or any other system capable of determining intervals of time, with a display or system to which a mechanical display can be incorporated." See also Additional U.S. Note 1(d) to chapter 91, HTSUS (clock movements). You argue that the timer "contains no display which indicates how much time has passed since or remains before a scheduled event in the pre-programmed cycle." You further argue that the device "does not provide a visual display of the time being measured by the movement," and cite examples of the uses of the term "display" found in EN 91.08, pg. (watch movements) and EN 91.09, pg. (clock movements). It is our opinion that this type of display is not necessary.

As stated above, EN 91.07, pg. 1547, provides that time switches usually have a dial "marked in hours and sometimes also in days and months." A time switch with a dial marked in days or months would not provide a visual display of the time being measured, yet remains classifiable under heading 9107, HTSUS. The outdoor photoelectric timer, when in the predetermined duration mode, directly measures time. When the device senses darkness, it activates (switches on) the outdoor lights. The device then measures, by counting a specified number of pulses, a continuous time period, after which time the lights will be deactivated (switched off). Accordingly, it is our opinion that the timer is also prima facie classifiable under heading 9107, HTSUS. See, e.g., HQ 953933, dated August 10, 1993; HQ 954491, dated November 18, 1993; HQ 955727, dated April 14, 1994.

As the timer is prima facie classifiable in more than one heading, it is necessary to resort to GRI 3. GRI 3(a) requires that the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the components contained in a composite good, those headings are to be regarded as equally specific in relation to those goods. Headings 8536 and 9107, HTSUS, each refer to part only of the components of the timer. Accordingly, no heading provides a specific description of the timer, and it is necessary to resort to GRI 3(b).

GRI 3(b), HTSUS, provides that "composite goods consisting of different materials or made up of different components, . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." It is our opinion that neither the switch component, nor the time switch component, of the outdoor photoelectric timer provides the device with its essential character. Both modes are equally viable, and would be used at the discretion of the user. It is therefore necessary to resort to GRI 3(c), which provides that "[w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration." Accordingly, the timer is classifiable under heading 9107, HTSUS, specifically under subheading 9107.00.80, HTSUS .

HOLDING:

The outdoor photoelectric timer is classifiable under subheading 9107.00.80, HTSUS, which provides for time switches with clock or watch movement or with synchronous motor valued over $5 each. The corresponding rate of duty for articles of this subheading is 45 cents each plus 6.4% ad valorem plus 2.5 cents/jewel.

EFFECT ON OTHER RULINGS:

PC 898778, dated June 14, 1994, is affirmed.

Sincerely,

John Durant, Director

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