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HQ 966743




August 31, 2004

CLA-2 RR:CR:GC 966743 DBS

CATEGORY: CLASSIFICATION

TARIFF NOS.: 8537.10.9070

Port Director
U.S. Customs and Border Protection
P.O. Box 3130
Laredo, TX 78044-3130

RE: Internal Advice 03/022; Pilot ignition controls; Chapter 90, Note 7 (2002)

Dear Port Director:

This is in response to your memorandum, dated September 23, 2003, requesting internal advice ("IA"), IA 03/022, regarding the tariff classification under the Harmonized Tariff Schedule of the United States ("HTSUS") of four models of pilot ignition controls, arising from a review of the goods during a compliance assessment beginning in 2001 of importer Johnson Controls, Inc. ("JCI"). The four models are identified as G891TCA-8103D, G770MHC-1C, G770KGA-3D, and G765BCA-11D.

FACTS:

In performing the compliance assessment, U.S. Customs and Border Protection ("CBP") determined that the models G891TCA-8103D and G770MHC-1C were classified in subheading 8537.10.90, HTSUS, and models G770KGA-3D and G765BCA-11D were classified in subheading 8543.89.96, HTSUS, as other electrical apparatus, having individual functions, not specified or included elsewhere in chapter 85, HTSUS. Counsel for JCI submitted a letter dated April 16, 2003, informing CBP of a binding ruling, HQ 083520, dated May 3, 1989, classifying electrical ignition control devices used in heating installations in subheading 9032.89.60, HTSUS. By affidavit of June 16, 2004, counsel verified the ruling was issued to JCI's customs broker on behalf of JCI. JCI believes this ruling applies to the goods at issue. JCI stated that the newer models have only minor changes from the models classified in the 1989 ruling.

You have requested that this office resolve the classification dispute between CBP and JCI. In addition, you note that HQ 083520 may be in conflict with HQ 555856, dated May 13, 1991, a valuation ruling regarding GSP eligibility, also issued to JCI's broker on behalf of JCI, which states, "[U]pon review of the ignition devices it appears that they are properly classified under subheading 8537.10.00, HTSUS." Counsel for JCI made no reference to this ruling in its submission.

The merchandise at issue is pilot ignition controls used in gas heating installations. We note from the descriptive literature provided that the G77x series controls are designed for indirect ignition of natural gas, Liquefied Petroleum (LP) gas, manufactured gas, mixed gas or LP gas-air mixtures. The G76x series controls are designed for direct main burner ignition and supervision for installations using the above-listed types of gas. The G891TCA-8103D is a pulse ignition control. It is a microprocessor-based direct spark ignition control that initiates combustion for a high efficiency pulse furnace. It is designed for use with the above-listed types of gas. Diagrams show that lead wires run from a thermostat to the ignition control and from the control to the main burner ground and spark electrode.

Counsel states that the description contained in the facts section of HQ 083520 accurately describes the current goods. It states that the operating sequence of a typical unit is as follows:

A remote thermostat, sensing that heat is required, sends a signal to the ignition control device thereby starting an ignition cycle. An electrical spark is automatically generated at the same time as the gas valve to the pilot is opened. A flame sensor of AC current is passed through the flame area to prove the presence of the pilot flame. If DC current is detected, the spark is discontinued and the main burner gas valve is electrically opened. In effect, the gas supply at the main burner is ignited by the pilot flame. If DC current is detected in the main burner flame area, the system will continue to run until a signal is received from the thermostat indicating that heat is no longer required, at which time the system shuts down and awaits the next signal from the thermostat.

In addition, according to JCI's technical experts, models G891TCA-8103D and G770MHC-1C incorporate fuses, plugs and sockets. Models G770KGA-3D and G765BCA-11D contain plugs. Pictures in the descriptive literature show that these apparatus are contained in small white cabinets.

LAW AND ANALYSIS:

I. HQ 083520 and HQ 555856:

We first note that HQ 083520 and HQ 555856 were issued prior to the Customs Modernization Act ("Mod Act") (Title VI of the North American Free Trade Agreements Implementation Act, Pub. L. 103-182), which became effective December 8, 1993. Prior to the Mod Act, a ruling could be modified or revoked without the notice and comment procedures required of 19 U.S.C. §1625. See 19 CFR 177.12. While HQ 555856 certainly called the classification of JCI's goods into question, upon review of the two case files we do not believe HQ 555856 constituted a revocation of HQ 083520.

At the time HQ 083520 was issued, heading 9032 was governed by Note 6 to Chapter 90, which then provided as follows:

Heading 9032 applies only to:

(a) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled; and

(b) Automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.

Effective January 10, 2002, the HTSUS was amended to conform to the amendments made to the International Convention on the Harmonized Commodity Description and Coding System for 2002. See Presidential Proclamation 7515, 66 FR 66549, Vol. 66, No. 247 (Dec. 26, 2001), paras. (1) and (9)(a). As a result, such that Note 6 was renumbered as Note 7, and the substance contained therein was modified. See id. at Annex I, para. 274; see also Proposed Modifications to the Harmonized Tariff Schedule of the United States, Investigation No. 1205-5 (Final), U.S. International Trade Commission Publication 3430, June 2001, Appendix B, 90-2.

Note 7 to Chapter 90 currently provides as follows:

Heading 9032 applies only to :

(a) Instruments and apparatus for automatically controlling the flow, level, pressure or other variables of liquids or gases, or for automatically controlling temperature, whether or not their operation depends on an electrical phenomenon which varies according to the factor to be automatically controlled, which are designed to bring this factor to, and maintain it at, a desired value, stabilised against disturbances, by constantly or periodically measuring its actual value; and

(b) Automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled, which are designed to bring this factor to, and maintain it at, a desired value, stabilised against disturbances, by constantly or periodically measuring its actual value.

Emphasis added.

The scope of the heading was limited by the amendment to the legal note by requiring that the apparatus covered by the heading maintain control and measure actual value. The goods covered by HQ 083520 do not perform the tasks required by Note 7. Accordingly, HQ 083520 was revoked by operation of law on the effective date of the amendment, pursuant to 19 CFR 177.12(d)(1)(i).

HQ 083520 has not been in effect since the implementation of the 2002 HTSUS on January 10, 2002. We have determined that HQ 555856 did not have the effect of revoking HQ 083520 when it was issued in 1991. Regardless of whether it is believed that HQ 083520 was correct during its effective dates, the ruling was binding on JCI and on CBP until such time as it was modified or revoked. Therefore, any remaining dispute as to the classification of the goods prior to January 10, 2002 is moot.

II. Classification of pilot ignition controls

We turn now to the classification of the ignition controls under the current HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8537 Boards, 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:

8537.10 For a voltage not exceeding 1,000 V:

8537.10.90 Other.

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

Other machines and apparatus:

8543.89 Other:
Other:
Other:
8543.89.96 Other:

9032 Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:

9032.10.00 Thermostats

Other instruments and apparatus:

9032.89 Other:

9032.89.60 Other.

Note 1(m) to Section XVI, HTSUS (which includes Chapters 84 and 85) provides: "This section does not cover: . . . Articles of chapter 90." Moreover, EN 85.37 provides in pertinent part: "This heading does not cover automatic controlling apparatus of heading 90.32." Pursuant to Note 1(m) to Section XVI, HTSUS, if the article is described in heading 9032, HTSUS, it cannot be classified in Chapter 85.

Heading 9032, HTSUS, is governed by Note 7 to Chapter 90, supra. As stated above, the ignition controls do not satisfy the terms of Note 7. They do not give instructions to maintain control at a desired value or stabilize against disturbances or measure actual value. They simply respond to signals sent by the thermostat. Therefore, they are not classified in heading 9032, HTSUS.

We turn then to heading 8537, HTSUS. EN 85.37 describes that the goods of the heading consist of an assembly of apparatus of headings 8535 and 8536, such as 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 heading includes a wide variety of goods, large and small, complex and relatively simple (other than simple switch assemblies). See Universal Electronics, inc. v. United States, Slip. Op. 94-68; 20 CIT 337, 340 (March 7, 1996), aff'd by Universal Electronics, inc. v. United States, 112 F.3d 488 (CAFC 1997); EN 85.37.

The Court of International Trade stated that lexicographic sources indicated that the phrase "panels . . . and other bases," as used in heading 8537, HTSUS, refers to "foundations, which may be flat, upon which electrical devices rest." Id. Additionally, the court found that such electrical devices must serve as part of a control system, i.e., they must be a part of a system in which information is input, and as a consequence, electricity causes the desired result to occur. Id. at 341.

The merchandise in Universal consisted of both switches and terminals. Because there was a combination of different types of devices that are classified under heading 8536, heading 8537, HTSUS was applicable. Universal did not explicitly address a position on multiple replications of a single type of device. However, in HQ 966188, dated May 17, 2004, we held that multiple switches on a base met the plain language of heading 8537 because each switch is an apparatus found in heading 8536, HTSUS.

Models G891TCA-8103D and G770MHC-1C contain fuses, switches and plugs, that is, two or more of the apparatus of headings 8535 or 8536, which are mounted on a foundation and enclosed in a small cabinet. They control the ignition cycle of the pilot light by receiving an electric signal from the thermostat and sending the signal for an electrical spark through the main burner ground to the spark electrode. That is, they are part of an operating sequence which receives input from the thermostat that heat is required, and as a consequence, electricity causes the start of the ignition cycle. Accordingly, they satisfy the terms of heading 8537, HTSUS, and are classified therein. As the controls operate at between 24 and 1,000 volts, and are not for the goods of heading 8421, 8422, 8450 or 8516, and they are not motor control centers, they are classified in subheading 8537.10.90, HTSUS.

Models G770KGA-3D and G765BCA-11D operate in a substantially similar fashion but contain four plugs. As these multiple plugs are two or more apparatus of headings 8535 or 8536, they meet the plain language of heading 8537. See HQ 966188, supra; see also HQ 964533, October 2, 2000 and HQ 963621, August 31, 2000. These two models also operate at between 24 and 1,000 volts. Thus they are classified in subheading 8537.10.90, HTSUS.

As they are provided for elsewhere in Chapter 85, the pilot ignition controls are not classified in heading 8543, HTSUS.

HOLDING:

As ruling letters issued under Part 177 of the CBP Regulations (19 C.F.R. §177) are binding on CBP until modified or revoked, the classification of JCI's pilot ignition controls prior to January 10, 2002 must be consistent with HQ 083520.

JCI's pilot ignition control models G891TCA-8103D, G770MHC-1C, G770KGA-3D and G765BCA-11D are classified in subheading 8537.10.9070, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for "Boards, 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: For a voltage not exceeding 1,000 V: Other: Other: Other." The current rate of duty is 2.7% ad valorem.

Duty rates are provided for the convenience of the internal advice applicant and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.

EFFECT ON OTHER RULINGS:

HQ 083520, dated May 3, 1989, was revoked by operation of law on January 10, 2002, the effective date of the 2002 HTSUS.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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