CLA-2 CO:R:C:M 952716 LTO
Mr. Bruce N. Shulman
Mr. S. Richard Shostak
Stein, Shostak, Shostak & O'Hara
3580 Wilshire Boulevard
Suite 1240
Los Angeles, California 90010-2597
RE: Swimming Pool and Spa Thermometers; Reconsideration of PC
867514; heading 9025; Additional U.S. Note 1(c); Chapter 90,
Note 1(ij); Chapter 95, Note 3; HQ 085895; HQ 950166
Dear Mr. Shulman and Mr. Shostak:
This is in response to your letter of September 10, 1992, on
behalf of Blue Devil Industries, requesting reconsideration of PC
867514, dated October 31, 1991, which concerned the
classification of swimming pool and spa thermometers under the
Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The articles in question consist of glass thermometer tubes,
plastic cards which are printed with the calibrations in degrees
Fahrenheit and Celsius, clear plastic or metal tubes, which
contain clear plastic windows, and plastic plugs. Several models
contain a string (some also contain a self-stick anchor) to
facilitate hanging the thermometer from a swimming pool or spa
wall, while others contain top plugs which afford them the
ability to float on top of the water in a vertical position.
You have indicated that approximately 80-90 percent of all
thermometers sold by Blue Devil Industries are used in pools.
You also explained that the floating thermometers are more likely
to be used in spas than in pools because they would be sucked
into swimming pool skimmers.
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In PC 867514, the swimming pool and spa thermometers were
held to be classifiable under subheading 9025.11.40, HTSUS, which
provides for other liquid-filled thermometers, for direct
reading, not combined with other instruments. You contend that
the thermometers are classifiable under subheading 9506.99.55,
HTSUS, which provides for parts and accessories of swimming
pools.
ISSUE:
Whether the thermometers in question are classifiable as
accessories to swimming pools under heading 9506, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
You contend that the articles in question are classifiable
as swimming pool accessories under heading 9506, HTSUS, rather
than under the provision for thermometers found in Chapter 90.
Chapter 90, note 1(ij) states that Chapter 90 does not cover
articles of Chapter 95. Thus, if the thermometers are
classifiable in Chapter 95, they cannot be classified in Chapter
90.
With regard to the classification of accessories, Additional
U.S. Rule of Interpretation 1(c) states that "[i]n the absence of
special language or context which otherwise requires . . . a
provision for 'parts' or 'parts and accessories' shall not
prevail over a specific provision for such part or accessory
[underlining added]." In the instant case, the "special language
or context" contemplated by the above rule exists.
Note 3 to Chapter 95 provides that "parts and accessories
which are suitable for use solely or principally with articles of
this chapter are to be classified with those articles." Thus, if
the articles in question are accessories that are solely or
principally used with an article of Chapter 95 (specifically,
swimming pools of heading 9506, HTSUS), they must be classified
under that heading, regardless of whether they are covered by a
specific provision (thermometers of heading 9025, HTSUS)
elsewhere in the tariff schedule.
The term "accessory" is not defined in either the HTSUS or
in the Harmonized Commodity Description and Coding System
Explanatory Notes. However, this office has stated that the term
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"accessory" is generally understood to mean an article which is
not necessary to enable the goods with which they are used to
fulfill their intended function. They are of secondary
importance, but must, however, contribute to the effectiveness of
the principal article (e.g., facilitate the use or handling of
the principal article, widen the range of its uses, or improve
its operation). See HQ 950166, dated November 8, 1991.
This office has on several occasions considered the issue of
what constitutes a swimming pool accessory. For example, in HQ
950166, we determined that a hinged plastic fin which attached to
a pool cleaning brush was classifiable as a swimming pool
accessory. In HQ 085895, dated November 11, 1989, we classified
a roller system for swimming pool covers as a swimming pool
accessory.
The thermometers in question, as did the plastic fin and
roller system, contribute to the effectiveness of the principal
article by allowing the user to determine the pool or spa's
temperature before entering the water. Thus, the thermometers
are accessories. It is now necessary to determine whether these
accessories are suitable for use principally with the swimming
pools of heading 9506, HTSUS.
The thermometers in question can be broken down into two
groups: (1) those that are designed to hang freely by a string,
and (2) those that are designed to float atop the water. It is
our opinion that the thermometers designed to hang freely by a
string are suitable for use principally with swimming pools.
They are assembled in protective tubes to avoid breakage while
hanging unprotected in the wet environment of pools. While it
can be argued that the thermometers can be used in any "wet
environment" including spas, you have indicated that 80-90
percent of them are in fact sold for use in pools. Thus, these
thermometers are classifiable as swimming pool accessories.
On the other hand, you have indicated that floating
thermometers are more likely to be used in spas than in pools.
Thus, these thermometers are not suitable for use principally
with swimming pools, and cannot be classified as swimming pool
accessories. Because spas are not covered by heading 9506,
HTSUS, which provides for swimming and wading pool accessories,
nor any other heading of Chapter 95, note 3 to Chapter 95 does
not apply.
Therefore, the floating thermometers are classifiable under
heading 9025, HTSUS, which provides for thermometers.
Specifically, they are classifiable under subheading 9025.11.40,
HTSUS, which provides for liquid filled, direct reading, non-
clinical thermometers. - 4 -
HOLDING:
The thermometers designed to hang freely by a string are
classifiable under subheading 9506.99.55, HTSUS, which provides
for ". . . swimming pools and wading pools; parts and accessories
thereof . . . [o]ther . . . [s]wimming pools and wading pools and
parts and accessories thereof." The corresponding rate of duty
for articles of this subheading is 5.3% ad valorem.
The thermometers designed to float atop the water are
classifiable under subheading 9025.11.40, HTSUS, which provides
for ". . . thermometers . . . [t]hermometers and pyrometers, not
combined with other instruments . . . [l]iquid-filled, for direct
reading . . . [o]ther." The corresponding rate of duty for
articles of this subheading is 8.4% ad valorem.
PC 867514, dated October 31, 1991, is hereby modified.
Sincerely,
John Durant, Director