CLA-2 OT:RR:CTF:TCM H113137 TNA
Mr. Troy Briceno
Bill Polkinhorn, Inc. CHB
2401 Portico Blvd.
Calexico, CA 92231
RE: Tariff classification of a pilot/thermocouple/thermopile/igniter assembly
Dear Mr. Briceno:
This is in response to your request on behalf of your client, Robertshaw Controls Co. (“Robertshaw”), submitted on January 4, 2010, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division (“NCSD”), for a binding ruling on the tariff classification of a pilot/thermocouple/thermopile/igniter assembly under the Harmonized Tariff Schedule of the United States (HTSUS). Your ruling request was forwarded to this office for a response.
The subject merchandise consists of a device called a pilot/thermocouple/ thermopile/igniter which is imported for almost exclusive use with gas fireplace units and log sets used in domestic households. It is identified as part no. 77789. As imported, it will consist of five distinct items: a pilot apparatus, a thermocouple, a thermopile, an igniter, and a metal mounting bracket. The pilot, the thermocouple, the thermopile, and igniter are attached to the metal mounting bracket. The bracket is used to mount the assembly to the fireplace unit for which the assembly is designed. The pilot directs the gas in three directions: to the thermopile, to the thermocouple, and to the main burner. The igniter is powered by a push-button piezo electric unit.
Whether a pilot/thermocouple/thermopile/igniter assembly should be classified in heading 7321, HTSUS, as a part of stoves, ranges, grates, cookers and similar nonelectric domestic appliances; in heading 8416, HTSUS, as furnace burners; in heading 8543, HTSUS, as electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; or in heading 9613, HTSUS, as lighters?
LAW AND ANALYSIS:
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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
7321 Stoves, ranges, grates, cookers (including those with subsidiary boilers for central heating), barbecues, braziers, gas rings, plate warmers and similar nonelectric domestic appliances, and parts thereof, of iron or steel:
8416 Furnace burners for liquid fuel, for pulverized solid fuel or for gas; mechanical stokers, including their mechanical grates, mechanical ash dischargers and similar appliances; parts thereof:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
9613 Cigarette lighters and other lighters, whether or not mechanical or electrical, and parts thereof other than flints and wicks:
Note 2(b) to Chapter 90, HTSUS, states:
Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:…
(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to heading 7321, HTSUS, states, in pertinent part:
This heading covers a group of appliances which meet all of the following requirements :
(i) be designed for the production and utilisation of heat for space heating, cooking or boiling purposes;
(ii) use solid, liquid or gaseous fuel, or other source of energy (e.g., solar energy);
(iii) be normally used in the household or for camping.
These appliances are identifiable, according to type, by one or more characteristic features such as overall dimensions, design, maximum heating capacity, furnace or grate capacity in the case of solid fuel, size of tank where liquid fuel is used. The yardstick for judging these characteristics is that the appliances in question must not operate at a level in excess of household requirements.
This heading includes :
(1) Stoves, heaters, grates and fires of the type used for space heating, braziers, etc.
The EN to heading 8416, HTSUS, states, in pertinent part, the following:
This heading covers a range of apparatus for the mechanical or automatic firing and stoking of furnaces of all kinds, and for evacuating the ash and cinders.
(A) FURNACE BURNERS
(3) Gas burners.
These include both high pressure types for use with forced draught, and low pressure types for use with atmospheric air. The air and gas is in either case fed through concentric or converging tubes….
Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), parts of the goods of this heading are also classified here (e.g., burner nozzles, thrust pistons and trays for mechanical stokers; chassis for mechanical grates, link sections and links, guides and rolls for mechanical grates).
The EN to heading 8543, HTSUS, states, in pertinent part, the following:
This heading covers all electrical appliances and apparatus, not falling in any other heading of this 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.
The EN to heading 9613, HTSUS, states, in pertinent part, the following:
In these a catalyst (usually sponge platinum) is made to glow by catalytic action in the presence of a gas…
The heading also includes identifiable parts of lighters (e.g., outer casings, millededged wheels, empty or full fuel reservoirs).
You argue that the subject pilot/thermocouple/thermopile/igniter assembly is a part used nearly exclusively in domestic gas fireplace units and log sets, and that the merchandise consists of five components which are all prima facie classifiable in two or more headings. You further argue that the subject assembly is classified by application of GRI 3(c), because none the components impart the entire item’s essential character. However, you argue in favor of classification in heading 7321, as a parts of stoves, ranges, grates, cookers, and similar merchandise, when GRI 3(c), which directs classification into the heading which appears last in numerical order, directs classification into heading 9613, HTSUS, according to the merchandise’s igniter.
In Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997) (“Bauerhin"), the court considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests resulted. See Bauerhin, 110 F.3d at 779 (citing United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322 (1933) and United States v. Pompeo, 43 C.C.P.A. 9 (1955)). As the court in Bauerhin explained:
We conclude that these cases are not inconsistent and must be read together. As set forth in Willoughby Camera, an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article” is surely a part for classification purposes. However, that test is not exclusive. Willoughby Camera does not address the situation where an imported item is dedicated solely for use with an article. Pompeo addresses that scenario and states that such an item can also be classified as a part. Reconciling Willoughby Camera with Pompeo, we conclude that where, as here, an imported item is dedicated solely for use with another article and is not a separate and distinct commercial entity, Pompeo is a closer precedent and Willoughby Camera does not apply. Under Pompeo, an imported item dedicated solely for use with another article is a “part” of that article within the meaning of the HTSUS.
Numerous CBP rulings apply this Bauerhin/Pompeo definition. See, e.g., HQ H044558 February 9, 2009; HQ H044559 February 9, 2009; HQ H005091 January 24, 2007.
Applying the Bauerhin and Pompeo definition of a “part” to the present case, we find that the pilot/thermocouple/thermopile/igniter assembly is a “part” of a gas fireplace unit or log set. Pilot/thermocouple/thermopile/igniter assemblies are integral to a gas fireplace or log set’s functions of displaying a flame in a fireplace and giving off heat into a room. Without the pilot and igniter, the gas fireplace or log set would not be able to light a flame, and without the thermocouple and thermopile, they would not be able to sustain the flame or even be suitable for domestic use within the industry. As a result, the pilot/thermocouple/thermopile/igniter assembly is integral to the functions of a gas fireplace unit or log set.
Furthermore, based on the information submitted, the subject merchandise is solely or principally used with gas fireplace units and log sets. Prior rulings have classified similar pilot/thermocouple/thermopile/igniter assemblies as parts of the larger unit for which they were principally used. See e.g., HQ H073657, dated November 20, 2009; HQ H081679, dated December 2, 2009. As a result, the subject merchandise is classified in subheading 7321.90.60, HTSUS, which provides for “Stoves, ranges, grates, cookers (including those with subsidiary boilers for central heating), barbecues, braziers, gas rings, plate warmers and similar nonelectric domestic appliances, and parts thereof, of iron or steel: Parts: Other.” Because we classify the subject merchandise as a part under GRI 1, we do not reach GRI 3.
By operation of GRI 1, the pilot/thermocouple/thermopile/igniter assembly is classified under heading 7321, HTSUS. It is specifically provided for in subheading 7321.90.60, HTSUS, as “Stoves, ranges, grates, cookers (including those with subsidiary boilers for central heating), barbecues, braziers, gas rings, plate warmers and similar nonelectric domestic appliances, and parts thereof, of iron or steel: Parts: Other.” The column one, general rate of duty is Free.
Duty rates are provided for your convenience and 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.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch