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HQ 967527




March 29, 2005

CLA-2 RR:CR:GC 967527 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9032.10.0090

Joan Studeny, Account Manager
GHY USA Inc.
572 South Fifth Street
Pembina, ND 58271

RE: Power Saver Cords

Dear Ms. Studeny:

This is in reference to your letter on behalf of Phillips & Temro Industries, dated November 8, 2004, to the Bureau of Customs and Border Protection, Director, National Commodity Specialist Division, New York, in which you requested a binding ruling concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a power saver cord, Model P/N# 2900009, Part Number 3600013. You provided a sample for our review. The binding ruling request was referred to this office for reply.

FACTS:

The article involved is a power saver cord manufactured by Phillips & Temro Industries. You describe the article as a thermostatically controlled device that monitors engine coolant temperature and provides power to a vehicles engine block heater only when needed.

The primary function of the article is to act as a short extension cord between the male plug of a vehicle’s engine block heater and the female source of electrical power. The article looks like a standard 3-prong (grounded) electrical extension cord except that the “female” end is larger. The bottom of this female end is curved to fit over an engine heater inlet hose. In the curve is a metal disk thermometer sensor. The sensor measures the temperature of the fluid in the hose. When the temperature drops below the desired factory set temperature range (20 to 40 degrees Fahrenheit) the power saver cord will allow electrical current to pass through to the engine block heater. When the temperature reaches the desired level, the temperature sensor will have the power cord open the circuit to discontinue the flow of current to the engine block heater. Heating an engine block is desirable for assisting starting a vehicle on cold days. The power saver cord reduces the cost of heating the engine coolant by using power only when the engine coolant temperature drops below the target temperature.

You submitted a letter from Revenue Canada Customs and Excise dated July 25, 1988, which classified the power saver cord in subheading 9032.89.90.00, of the Canadian tariff, without an explanation of the reason for the determination.

ISSUE:

What is the classification under the HTSUSA for the power saver cord?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

The HTSUSA provisions under consideration are as follows:

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

9032.10.00 Thermostats

9032.10.0090 Other

Other instruments and apparatus:

9032.89 Other

9032.89.60 Other

Note 7 to Chapter 90 provides:

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

In understanding the language of the HTSUSA, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 90.32 provides in pertinent part as follows:

In accordance with Note 7 to this Chapter, this heading covers:

(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.

(I) INSTRUMENTS AND APPARATUS FOR AUTOMATICALLY CONTROLLING THE FLOW, LEVEL, PRESSURE OR OTHER VARIABLES OF LIQUIDS OR GASES, OR FOR AUTOMATICALLY CONTROLLING TEMPERATURE. . . .
This group includes:
. . .
(D) Thermostats are used for automatically controlling temperature . . .

“Thermostat” is defined as follows. The McGraw-Hill Dictionary (2002): “an instrument which measures changes in temperature and directly or indirectly controls sources of heating and cooling to maintain a desired temperature. Also known as thermorelay.” The Random House Dictionary of the English Language (unabridged ed.; 1973): “a device, including a relay actuated by thermal conduction or convection, that functions to establish and maintain a desired temperature automatically or signals a change in temperature for manual adjustment.” The McGraw Hill Encyclopedia of Science and Technology Online describes a thermostat as an “instrument which directly or indirectly controls one or more sources of heating and cooling to maintain a desired temperature. To perform this function a thermostat must have a sensing element and a transducer. The sensing element measures changes in the temperature and produces a desired effect on the transducer. The transducer converts the effect produced by the sensing element into a subtle control of the device or devices which affect the temperature.”

In the instant case, the power saver cord fits the above definitions. It measures the changes in temperature in the engine heater hose. The power saver cord itself does not provide any heat, but depending on the temperature it senses, controls the flow of electricity to the engine block heater which provides heat to the engine coolant. In HQ 086179 (March 12, 1990), CBP found that a device whose essential function was to 1) turn on a hot water generator, 2) monitor the water temperature and 3) turn off the hot water generator when the water reaches a predetermined temperature, was classified as a thermostat in subheading 9032.10.00, HTSUSA. This is the same operation being performed in the instant case by the power saver cord. See also HQ 965948 (January 27, 2003); NY 818204 (February 13, 1996); NY D88930 (March 10, 1999).

You submitted a letter from Revenue Canada Customs and Excise dated July 25, 1988, which classified the power saver cord in subheading 9032.89.90.00, the provision for other instruments and apparatus, other, of the Canadian tariff, which is a “basket provision.” However, there was no explanation for how they came to that classification. Therefore we do not find the Canadian classification letter persuasive. See HQ 966771 (September 15, 2004). Since the power saver cord meets the definition of “thermostat” which is a more precise classification than the basket provision, we, therefore, find that the power saver cord is classified in subheading 9032.10.0090, HTSUSA, as [a]utomatic regulating or controlling instruments and apparatus; parts and accessories thereof, [t]hermostats, [o]ther.

HOLDING:

The power saver cord is classifiable in subheading 9032.10.0090, HTSUSA, as [a]utomatic regulating or controlling instruments and apparatus; parts and accessories thereof, [t]hermostats, [o]ther. The 2005 column one general rate of duty is 1.7% ad valorum. Duty rates are provided for your convenience 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.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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