CLA-2 RR:CTF:TCM H110422 EAG
TARIFF NO: 8533.40.80, HTSUS
Mr. Daniel B. Berman, Esq.
Hancock & Estabrook, LLP
1500 Axa Tower 1
100 Madison Street
Syracuse, NY 13202
RE: Tariff Classification and Country of Origin Marking of the Titan and Harmony
Dimmer Switches
Dear Mr. Berman:
This is in response to your letter of March 5, 2010, to U.S. Customs and Border Protection (CBP), Office of Regulations and Rulings, on behalf of your client Pass & Seymour, Inc. (P&S), requesting a prospective classification ruling for the Titan Dimmer Model No. CD700W and the Harmony Dimmer Model No. D703PW, under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter also requested a determination of marking for country of origin purposes.
FACTS:
The merchandise at issue is identified as the Titan Dimmer Model No. CD700W (Titan Dimmer) and the Harmony Dimmer Model No. D703PW (Harmony Dimmer). These switches are for residential and commercial use in electrical circuits of less than 1,000 volts and are designed for permanent installation in electrical circuits to control the degree at which permanent lighting fixtures operate.
The Titan Dimmer is a slide-to-off dimmer where the light fixture is turned on, dimmed and turned off by sliding the dimmer knob up or down. The Harmony Dimmer is a combination light switch and dimmer. The Harmony Dimmer includes an on/off switch and a dimming knob. The dimming knob slides up and down and is parallel to the on/off switch.
The components for the Titan and Harmony Dimmers will be manufactured in China. These components will be shipped to Mexico for assembly into completed dimmers. Upon completion of assembly, testing and packaging, P&S will import the dimmers into the United States.
ISSUES:
Are the Titan and Harmony Dimmers classified under subheading 8533.39.00, HTSUS, as “Electrical resistors (including rheostats and potentiometers), other than heating resistors; parts thereof: wirewound variable resistors, including rheostats and potentiometers: other”?
Are all the components of the Titan and Harmony Dimmers classified under subheading 8533.90.80, HTSUS, as “Electrical resistors (including rheostats and potentiometers), other than heating resistors; parts thereof: parts: other”?
Are the Titan and Harmony Dimmers products of Mexico for country of origin marking purposes?
LAW AND ANALYSIS:
I. Classification
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 2 through 6 may then be applied in order.
The 2010 HTSUS provisions under consideration are as follows:
7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel.
* * *
8533 Electrical resistors (including rheostats and potentiometers), other than heating resistors; parts thereof:
8533.39 Wirewound variable resistors, including rheostats and potentiometers:
8533.39.00 Other.
* * *
8533.40 Other variable resistors, including rheostats and potentiometers:
Other.
* * *
8533.90 Parts:
8533.90.80 Other.
* * *
8536 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 and other connectors, junction boxes), for a voltage not exceeding 1,000 V.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 85.33(A) defines electrical resistors as “conductors whose function is to provide a given electrical resistance in a circuit (e.g. to limit the current flowing).” EN 85.33(C) defines a potentiometer as “a fixed resistor between two contacts and a sliding tapping which can make contact on any point of the resistor.” The Encarta World English Dictionary defines a potentiometer as “a three-terminal component, typically used as a volume or brightness control, that give a variable electric potential by rotating a shaft or moving a slider.” See www.encarta.msn.com.
The Titan Dimmer is an electrical resistor because it contains lines of wire which lay underneath a rectangular resistant film. The resistant film and the knob function to provide electrical resistance in the lighting fixture’s circuit. As the knob slides up and down the resistant film, the amount of light emitted from the light fixture changes to correspond with the amount of resistance in the circuit. The Titan Dimmer has three terminals: each end of the resistant film and the sliding knob. The Titan Dimmer is a potentiometer because it is a three-terminal electrical resistor which includes a sliding element that can make contact on any point of the resistor.
The Titan Dimmer is not a wire-wound variable resistor under subheading 8533.39, HTSUS, because the wire underneath of the film is not wound around anything. Rather, the wire underneath the resistant film lies flat. By application of GRI 1, the Titan Dimmer is a type of variable resistor, which includes potentiometers, classifiable under subheading 8533.40.80, HTSUS.
The Harmony Dimmer is a composite machine because it includes both a switch and a potentiometer. The Harmony Dimmer’s switch turns the lighting fixture on and off. The Harmony Dimmer’s sliding potentiometer dims or raises the lights. According to Section XVI (which includes Chapter 85), Note 3, HTSUS, composite machines are to be classified as if consisting only of that component or as being that machine which performs the principal function. Therefore, the Harmony Dimmer’s principal function will determine the Harmony Dimmer’s classification.
Several factors bear light upon the item’s principal function. The P&S website refers to the Harmony Dimmer as a “dimmer.” The website stresses the importance of the dimming function by explaining that “constant memory returns lights to previous level after a power failure.” Consumers who purchase this item will most likely purchase it based upon its dimming functionality. The light switch portion supports and is subsidiary to the dimming function.
For all of the foregoing reasons, the principal function of the Harmony Dimmer is its dimming function which is performed by the sliding potentiometer. This determination is consistent with New York Ruling Letter (NY) J82684, dated April 7, 2003, where CBP determined that a “Push On/Off Dimmer” which included both an off/on switch and a dimmer fell under heading 8533, HTSUS, as an electrical resistor. By application of GRI 1, the Harmony Dimmer is a sliding potentiometer classifiable under subheading 8533.40.80, HTSUS.
The second determination request is whether all the components of the Titan and Harmony Dimmers are classifiable under subheading 8533.90.80, HTSUS, as parts of electrical resistors. While many components are classifiable under subheading 8533.90.80, HTSUS, the remaining dimmer components are classifiable under different headings and subheadings.
Heading 8533, HTSUS, is part of Section XVI, HTSUS. Note 1(g) to Section XVI, HTSUS, states that “[p]arts of general use, as defined in Note 2 to Section XV, of base metal (Section XV)” are excluded from classification under Section XVI and therefore from heading 8533, HTSUS. Note 2(a) to Section XV defines “parts of general use” as “
“[a]rticles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals.” The aforementioned headings apply to articles of iron or steel such as screws, bolts, washers, etc.
Moreover, Legal Note 2 to Section XVI, HTSUS, provides, in relevant part:
Subject to note 1 to this section, note 1 to chapter 84 and note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings[.]
Both the Titan and Harmony Dimmers include small screws of iron or steel which hold the dimmers together. These small screws are classifiable under heading 7318, HTSUS, as “[s]crews . . . of iron or steel.” According to Note 1(g) to Section XVI, these screws are excluded from classification under heading 8533, HTSUS, because they are parts of general use. Therefore, not all of the parts of the Titan and Harmony Dimmer are classifiable under subheading 8533.90.80, HTSUS, as parts of electrical resistors.
In addition, Titan Dimmer Part No. 426041 and Harmony Dimmer Part. No. 426044 are sliding potentiometers with a sliding knob which runs the length of resistant film lying on top of thin wires. In both dimmers, this sliding potentiometer attaches to the printed circuit board assembly and is connected to the external knob which the consumer uses to dim the lights on the completed dimmer.
Just like the completed Harmony and Titan Dimmer, the sliding potentiometer component is an electrical resistor. It is not wire-wound because its wires lay flat underneath of an electrical resistor tape. By application of Legal Note 2(a) to Section XVI, HTSUS, the sliding potentiometer component is an electrical resistor under heading 8533, HTSUS. The sliding potentiometer component is specifically provided for in subheading 8533.40.80, HTSUS, as a variable resistor which includes potentiometers. Thus, this component is not classifiable under subheading 8533.90.80, HTSUS, for parts of electrical resistors because it is classified under subheading 8533.40.80, HTSUS, as an electrical resistor.
II. Country of Origin Marking
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. §1304), requires that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit in such manner as to indicate to the ultimate purchaser the English name of the country of origin of the article. The regulations implementing the requirements and exceptions to 19 U.S.C. §1304 are set forth in Part 134, CBP Regulations (19 C.F.R. Part 134).
Section 134.1(b), CBP Regulations (19 C.F.R. §134.1(b)), defines “country of origin” as:
The country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the “country of origin” within this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.
Section 134.1(j) provides that the “NAFTA Marking Rules” are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) defines a “good of a NAFTA country” as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.
Part 102 of the CBP Regulations sets forth the NAFTA Marking Rules. Section 102.11 sets forth the required hierarchy for determining country of origin for marking purposes:
The following rules shall apply for purposes of determining the country of origin of imported goods other than textile and apparel products covered by § 102.21.
(a) The country of origin of a good is the country in which:
(1) The good is wholly obtained or produced; (2) The good is produced exclusively from domestic materials; or (3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in § 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.
(b) Except for a good that is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation 3, where the country of origin cannot be determined under paragraph (a) of this section:
(1) The country of origin of the good is the country or countries of origin of the single material that imparts the essential character to the good, or (2) If the material that imparts the essential character to the good is fungible, has been commingled, and direct physical identification of the origin of the commingled material is not practical, the country or countries of origin may be determined on the basis of an inventory management method provided under the appendix to part 181 of this chapter.
(c) Where the country of origin cannot be determined under paragraph (a) or (b) of this section and the good is specifically described in the Harmonized System as a set or mixture, or classified as a set, mixture or composite good pursuant to General Rule of Interpretation 3, the country of origin of the good is the country or countries of origin of all materials that merit equal consideration for determining the essential character of the good. (d) Where the country of origin of a good cannot be determined under paragraph (a), (b) or (c) of this section, the country of origin of the good shall be determined as follows:
(1) If the good was produced only as a result of minor processing, the country of origin of the good is the country or countries of origin of each material that merits equal consideration for determining the essential character of the good; (2) If the good was produced by simple assembly and the assembled parts that merit equal consideration for determining the essential character of the good are from the same country, the country of origin of the good is the country of origin of those parts; or
(3) If the country of origin of the good cannot be determined under paragraph (d)(1) or (d)(2) of this section, the country of origin of the good is the last country in which the good underwent production.
In order to be marked as a product of Mexico, the Titan and Harmony Dimmer components must satisfy the tariff change, or tariff shifting requirements of 19 C.F.R. § 102.20. The assembled Titan and Harmony Dimmers are both classified under subheading 8533.40, HTSUS. The rule for subheading 8533.40, HTSUS, states that a product can be marked as a product of Mexico so long as each of its components undergoes “a change to subheading 8533.10 through 8533.40 from any other subheading, including another subheading within that group.” 19 C.F.R. § 102.20 (emphasis added).
Therefore, in order for the dimmers to be labeled as products of Mexico, all the Titan and Harmony Dimmer components must have been classified in a subheading other than 8533.40, HTSUS, before they were assembled in Mexico. As previously mentioned, Titan Dimmer Part No. 426041 and Harmony Dimmer Part No. 426044 are
both sliding potentiometers classifiable under subheading 8533.40.80, HTSUS. Since this sliding potentiometer component is classified in the same subheading as the completed Titan and Harmony Dimmers, the dimmers do not satisfy the NAFTA tariff shift rules for subheading 8533.40, HTSUS.
The Titan and Harmony Dimmer are made of several components. However, the component which imparts the essential character to both dimmers is the sliding potentiometer component. The sliding potentiometer component is manufactured and assembled in China. Under 19 C.F.R. § 102.11(b)(1), the country of origin of the component which imparts the essential character of the finished product is also the country of origin of the finished product for marking purposes. Under 19 C.F.R. § 102.11(a)-(b), the completed dimmers fail to meet the NAFTA requirements for product of Mexico marking.
For all of the aforementioned reasons, the Titan and Harmony Dimmers’ country of origin for marking purposes is China.
HOLDING:
By application of GRI 1 and Note 3 to Section XVI, the completed Titan and Harmony Dimmers are classified under subheading 8533.40.80, HTSUS, which provides for “[e]lectrical 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 and other connectors, junction boxes), for a voltage not exceeding 1,000 V: other variable resistors, including rheostats and potentiometers: other.” The column one, general rate of duty is free.
By application of GRI 1 and Notes 1(g) and 2(a) to Section XVI, not all of the components of the dimmers are classified under subheading 8533.90.80, HTSUS, which provides for “[e]lectrical resistors (including rheostats and potentiometers), other than heating resistors; parts thereof: parts: other.”
Pursuant to 19 C.F.R. § 102.11, the country of origin of the Titan and Harmony Dimmers for marking purposes is China.
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 internet at www.usitc.gov.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch