CLA-2 OT:RR:CTF:TCM H194696 DSR
Mr. Zlatko Hadzismajilovic
McCarter & English, LLP
245 Park Avenue
27th Floor
New York, NY 10167-0001
RE: Reconsideration of NY N175719 concerning tariff classification of pressure switches
Dear Mr. Hadzismajilovic:
This is in response to your request on behalf of Ashcroft, Inc. (“Ashcroft”) dated November 16, 2011, for the reconsideration of New York Ruling Letter (NY) N175719, dated August 8, 2011, on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of pressure switches. We have examined the submitted information and our ruling follows.
FACTS:
From the information provided, the two Ashcroft pressure switches at issue are identified as “B-Series Pressure Switches.” One is identified as Cat. No. T424TS027XJL and is a single pole switch rated for up to 15 amperes and 480 volts. The other is identified as Cat. No. B768S and is a double pole switch rated for up to 11 amperes and 250 volts. They are actuated by a change in pressure of a gas or liquid. When a predetermined value is achieved, the pressure switches will open or close electrical circuits. The pressure switches will automatically reset when the pressure is restored to normal pressure. They consist of electrical micro-switches with normally open (NO) and normally closed (NC) contacts housed within watertight and explosion proof enclosures with actuator mechanisms. Pressure changes apply force to the actuators, which in turn activate the micro-switches at predetermined set points, thereby making or breaking electrical circuits. In NY N175719, dated August 8, 2011, both devices were classified in subheading 8536.50.90, HTSUS, which provides for “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits…Other switches: Other: Other,” dutiable at 2.7 percent ad valorem.
You contest that classification and assert that the devices are instead classified in subheading 9032.89.40, HTSUS, which provides for “Automatic regulating or controlling instruments and apparatus; parts and accessories thereof: Other instruments and apparatus: Other: Other,” dutiable at 1.7 percent ad valorem.
ISSUE:
Whether the pressure switches are classified as electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits under heading 8536, HTSUS, or as automatic regulating or controlling instruments and apparatus under heading 9032, HTSUS?
LAW AND ANALYSIS:
The following HTSUS provisions are under consideration:
8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders and other connectors, junction boxes), for a voltage not exceeding 1,000 volts; connectors for optical fibers, optical fiber bundles or cables
* * *
9032 Automatic regulating or controlling instruments and apparatus
* * * *
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 based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
Ashcroft states that when the subject pressure switches react to changes in pressure, the switches “will send a signal (perhaps proportional to the difference between the current temperature and the desired temperature) to heating and-or [sic] cooling apparatus to operate or turn off until the space(s) reach(es) the desired temperature range.” Ashcroft asserts that the switches are devices that maintain a user-selected pressure level and adjust automatically once that level is reached and, as such, are classifiable as “automatic regulating or controlling instruments and apparatus” of heading 9032, HTSUS.
General EN(I)(F) to Chapter 90 states that Chapter 90, HTS, covers, in relevant part, “a large group of measuring, checking or automatically controlling instruments and apparatus, whether or not optical or electrical and in particular those of heading 90.32 as defined in Note 7 to the Chapter.” Subheading 9032, HTSUS, is limited in scope by Note 7 to Chapter 90, HTS, which states, in relevant part, the following:
[Heading 9032, HTSUS] applies only to:
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, stabilized against disturbances, by constantly or periodically measuring its actual value; and
The tariff does not define the terms “regulating” or “controlling,” but, EN 90.32 states the following:
Automatic control apparatus for liquids or gases and apparatus for automatically controlling temperature form part of complete automatic control systems and consist essentially of the following devices:
A device for measuring the variable to be controlled (pressure or level in a tank, temperature in a room, etc.); in some cases, a simple device which is sensitive to changes in the variable (metal or bi metal rod, chamber or bellows containing an expanding liquid, float, etc.) may be used instead of a measuring device.
A control device which compares the measured value with the desired value and actuates the device described in (C) below accordingly.
A starting, stopping or operating device.
Apparatus for automatically controlling liquids or gases or temperature, within the meaning of Note 7 (a) to this Chapter, consists of these three devices forming a single entity or in accordance with Note 3 to this Chapter, a functional unit.
Some instruments and apparatus do not incorporate devices which compare the measured value with the desired value. They are directly activated by means of a switch, e.g., when the predetermined value is reached …
Further:
This group includes:
Pressure controllers or regulators, also called manostats. These consist essentially of a pressure sensitive device, a controlling device which compares (e.g., by means of an adjustable spring) the pressure to be controlled with the prescribed pressure, and an electric contact or a small valve operating a servo circuit …
Unlike the manostats described by EN 90.32, the subject pressure switches simply react to changes in pressure, i.e., when the system pressure reaches a preset maximum, the switches are tripped and the pressure within the system decreases. Ashcroft states that, after the switches are tripped, that decrease in pressure is “mainly due to the snap action of the micro switch and other mechanical forces,” which causes the micro switches within the devices to gradually reset. However, there is no explanation or evidence presented illustrating how the cited “snap action” within the pressure switches actually instigates such a change in system pressure, or how the pressure switch itself maintains system pressure at a desired value, or within a range of values, by constantly and periodically measuring its actual value. Nor is there an explanation of the “other mechanical forces.” Those are critical omissions. While, per EN 90.32, some instruments and apparatus within heading 9032, HTSUS, do not incorporate devices which compare the measured pressure with the desired pressure, and are directly activated by means of a switch when the predetermined value is reached, the subject pressure switches are passive devices that react to changes in the external environment (preset maximum pressure) by opening or closing a switch and thus allowing the passage (or cutting off) of an electrical current to a pressure regulating device. They are not the devices that actively regulate or control said system pressure. They are instead switches that simply allow the activation of such regulating or controlling devices by making or breaking circuits.
Ashcroft cites three rulings in support of its position – NY E88845, NY E88846, and NY E88847, all dated December 6, 1999. However, each cited ruling concerned thermostats with either built-in thermometers or that were connected to external thermometers. The thermostats would send signals (perhaps proportional to the difference between the current temperature and the desired temperature) to heating/cooling apparatus to operate or turn off until the space(s) reach(es) the desired temperature range. Programmable versions of the thermostats could automatically change the desired temperature range up to several times a day, depending, primarily, upon the day of the week and the time of day. In finding that the thermostats were within the scope of heading 9032, HTSUS, we noted that the devices did the “brain work” to maintain temperatures in the desired ranges by actively “deciding” when to turn heating or cooling apparatus on and off. That is not the case here. The subject pressure switches do not “decide” anything via a comparison of current and desired pressures and, contrary to Ashcroft’s assertion, they do not “maintain a user-selected pressure level.” As noted above, the subject devices merely open or close circuits and thus allow (or disallow) electricity to flow to pressure regulating apparatus. This is precisely the function of a switch. See Merriam-Webster’s Collegiate Dictionary (10th Ed.) (a switch is defined as “a device for making, breaking, or changing the connections in an electrical circuit”).
Heading 8536, HTSUS, provides for electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits for a voltage not exceeding 1,000 volts. EN 85.36 explains that, in relevant part, such apparatus consists essentially of devices for making or breaking one or more circuits in which they are connected. The subject devices squarely fall within that definition.
HOLDING:
By application of GRI 1, the pressure switches are classified under 8536.50.90, HTSUS, which provides for “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits…Other switches: Other: Other,” dutiable at 2.7 percent ad valorem.
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/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N175719, dated August 8, 2011, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division