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HQ 964833




June 7, 2001

CLA-2 RR:CR:GC 964833 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.89.96

Ms. Laurie L. Anderson
Honeywell Inc.
P.O. Box 524
Minneapolis, MN 55440-0524

RE: HQ 961147 revoked; Thermocouples; Thermopiles

Dear Ms. Anderson:

This letter is with respect to HQ 961147 dated December 17, 1997, issued to you by this office concerning the classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of certain thermocouples and thermopiles.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 961147, as described below, was published in the Customs Bulletin on May 2, 2001, Volume 35, Number 17/18. No comments were received in response to that notice.

FACTS:

The goods at issue are thermocouples and thermopiles for gas pilot burners. The thermocouples are clamp type, screw-in type, or push-in type products which are mounted into the pilot burners. They provide power to the safety cut-off coil of the V family of gas valves. In response to a change in temperature, the thermocouples produce a 30 millivolt current to the pilot portion of the valve, thereby opening or closing the valve. The thermopiles, which are of the push-in or screw-in type mounted into the pilot burners, operate in a similar manner as the thermocouples with the difference that, in response to a change in temperature, the thermopiles produce a 750 millivolt current to the pilot portion of the valve, thereby opening or closing it.

In HQ 961147, we affirmed PC 865048, which the District (now Port) Director of Customs issued to you on August 16, 1991, and classified the thermocouples and thermopiles in subheading 9025.19.80, HTSUS, as: “... thermometers ... : Thermometers and pyrometers, not combined with other instruments: ... Other: ... Other.” We have reviewed that classification and have determined that it is incorrect. The correct classification is set forth below.

ISSUE:

What is the tariff classification of the thermocouples and thermopiles?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

8416 Furnace burners for liquid fuel, for pulverized solid fuel or for gas; ... parts thereof:

8416.90.00 Parts.

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:

Other machines and apparatus:

8543.89 Other:

Other:

Other:

8543.89.96 Other.

9025 Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof:

Thermometers and pyrometers, not combined with other instruments:

9025.19 Other:

9025.19.80 Other.

“Thermometer” is defined as follows in The Random House Dictionary (unabridged edition; 1973): “an instrument for measuring temperature, often consisting of a sealed glass tube that contains a column of liquid, as mercury, which expands and contracts, or rises and falls, with temperature changes, the temperature being read where the top of the column coincides with a calibrated scale marked on the tube or its frame.”

The thermocouples and thermopiles are not thermometers as they do not measure temperature. They produce electrical power when the flame of the pilot light heats the tube; they stop producing electricity when the flame goes out and the tube cools. We note further that the thermocouples and thermopiles are not "thermocouple thermometers" as that term is used in EN 90.25(B)(5)(ii). Accordingly, classification in heading 9025, HTSUS, is precluded.

In your request for reconsideration of PC 865048, you specifically inquired whether, as part of a pilot burner, the thermopile might be classifiable in subheading 8416.90.00, HTSUS, as other parts of furnace burners. Subject to certain exceptions that are not relevant here, 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). Other parts, if suitable for use solely or principally with a particular machine, or with a number of machines of the same heading, are to be classified with the machines of that kind. See Note 2(b).

EN 85.43 provides, in pertinent part: “This heading covers all electrical appliances and apparatus, not falling in any other heading of the Chapter, nor covered more specifically by a heading of any other Chapter of the nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90.” [All emphasis in original.]

Based on the text of heading 8543, and supported by EN 85.43, we find that the thermocouples and thermopiles are goods included in that heading. Pursuant to Note 2(a) to Chapter XVI, HTSUS, therefore, the thermocouples and thermopiles are not classified pursuant to Note 2(b).

Accordingly, we find that the thermocouples and thermopiles are classified in subheading 8543.89.96, HTSUS, as: “Electrical machines or apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: ... Other machines and apparatus: ... Other: ... Other: ... Other: ... Other.”

HOLDING:

The thermocouples and thermopiles are classified in subheading 8543.89.96, HTSUS, as: “Electrical machines or apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: ... Other machines and apparatus: ... Other: ... Other: ... Other: ... Other.”

EFFECT ON OTHER RULINGS:

HQ 961147 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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