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HQ 966865

May 12, 2004

CLA-2 RR:CR:GC 966865 RSD


TARIFF No. 8516.80.8000

Area Port Director
Customs and Border Protection
Port Seattle, Washington
1000 Second Avenue
Suite 2000
Seattle, Washington 98104

RE: Protest Number 3001-03-100075; heating element for heating the intake air of diesel engines

Dear Director:

This is our decision on Protest number 3001-03-100075, filed by AMH Customs Consultants on behalf of NGK Spark Plugs, Inc. on April 9, 2003, against your classification of NTK Air Heaters used with diesel engines under the Harmonized Tariff Schedule of the United States (HTSUS). The entry under protest was liquidated on January 24, 2003, and this protest was timely filed on April 9, 2003.


The subject merchandise is referred to as NTK Air Heaters that are used with compression ignition diesel engines. The heating element of the NTK Air Heater is composed of iron chrome alloy bar. When electricity is passed through this heating element, its metal coils heats the surrounding air. The heating element is supported by a ceramic insulator and is housed in an aluminum casing. The housing is 21.3 cm long by 10 cm wide by 2.5 cm deep. The resistor coil in this housing is visible through two cutouts of 5 cm by 8.5 cm. The heating element is used to pre-heat the air before it enters the combustion cylinder of a diesel engine. This is to ensure that the temperature of the air will be high enough to ignite the fuel.

The air heater derives its power from the electric system of the automobile, which in turned is derived from the automotive battery. When the ignition of the automobile is turned on, the air heater receives a signal from the air temperature sensor through the controller mechanism directing the activation of the air heater. Because diesel engines require more initial power to start the combustion process, they generally use larger batteries than gasoline spark ignition engines. The time required to pre-heat the air in a diesel engine relates to the air temperature in the intake manifold. As the temperature decreases, more time is required to pre-heat the air.

The merchandise under protest was entered and the entry liquidated under subheading 8409.99.91, HTSUS, as parts suitable for use solely or principally with the engines of heading 8407 or 8408, HTSUS. Protestant claims that the NTK Air Heater should be classified in subheading 8516.80.80, HTSUS, as electric heating resistors.


Whether the heating element for diesel engines is classified in subheading 8516.80.80, HTSUS, as an electric heating resistor or in subheading 8409.99.99, HTSUS, as parts suitable for use solely or principally with the engines of heading 8407 or 8408, HTSUS.


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 may then be applied.

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, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8409 Parts suitable for use solely or principally with engines of heading 8407 or 8408:


8409.99 Other:


8409.99.91 For vehicles of subheading 8701.20 or heading 8702, 8703 or 8704.

8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryer, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof:

8516.80 Electric heating resistors:

8516.80.80 Other.

EN 84.09 concerns parts suitable for use solely or principally with the engines of heading 8407 or 8408.

Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), this heading covers parts of internal combustion piston engines of heading 84.07 or 84.08 (e.g., pistons, cylinders and cylinder blocks; cylinder heads; cylinder liners; inlet or exhaust valves; inlet or exhaust manifolds; piston rings; connecting-rods; carburettors; fuel nozzles).

However, the heading excludes:

(c) Electrical ignition or starting equipment (including sparking plugs and glow plugs) (heading 85.11).

EN 85.16 indicates

(F) Electric Heating Resistors

With the exception of those of carbon (heading 85.45), all electrical heating resistors are classified here, irrespective of the classification of the apparatus or equipment in which they are to be used.

They consist of bars, rods, plates, etc., or lengths of wire (usually coiled), of special material which becomes very hot when current is passed through it. The material used varies (special alloys, compositions based on silicon carbide, etc.). They may be obtained in the form of individual components by a printing process.

Wire resistors are usually mounted on insulating formers (e.g. of ceramics, steatite, mica or plastics) or on soft insulating core (e.g., of glass fibres or asbestos). If not mounted, wire of this kind is classified here only if cut to length and coiled or otherwise formed to a shape identifying it as a heating resistor element. The same applies to bars, rods and plates which, to be classified here, must be cut to length or side ready for use.

Resistors remain classified here even if specialised for a particular machine or apparatus, but if assembled with parts other than a simple insulated former and electrical connections they are classified as parts of the machines or apparatus in question (e.g. base plates for smoothing irons and plates for electric cookers).

Based on the language of EN 85.16, the import specialist in reviewing the entry, determined that the air heater should not be classified in heading 8516 HTSUS, because the coil and its ceramic insulator or former (“a frame or core about which a coil is wound”) are in an aluminum housing. The substantial nature of this housing, which makes up the bulk of the resistor, was believed to constitute a part other than a simple insulated former and electrical connection referenced in EN 85.16.

In HQ 951157 dated February 9, 1993, we considered the classification in the HTSUS of a variety of heating elements specifically designed for use with particular ranges (range surface elements) and ovens (bake and broil elements). Many of the heating elements in question were assembled with additional parts other than an insulated former and electrical connections. We explained that in light of the examples listed in EN 85.16 of the additional parts that would require classification of a particular resistor as a part (base plates for smoothing irons and plates for electric cookers), that subheading 8516.80.80, HTSUS, also encompassed resistors that are assembled with certain parts other than an insulated former and electrical connections.

Several models of heating resistors for both range surfaces and ovens considered in HQ 951157 were assembled with support brackets, as well as, an insulated former and electrical connections. We determined that these support brackets to the heating resistors did not perform functions that were similar to, or as substantial as the examples mentioned in EN 85.16 of the additional parts which would disqualify a heating element from being classified in heading 8516, HTSUS. Therefore, we found that these heating elements were still classified in subheading 8516.80.80, HTSUS.

However, HQ 951157 stated that the heating elements for range surfaces that were assembled with metallic caps, drip pans or trim rings, in addition to an insulated former, electrical connections and support brackets, were not covered by subheading 8516.80.80, HTSUS, and were classified as parts of ranges under subheading 8516.90.20, HTSUS (none of the heating elements for ovens were classifiable as parts). See also HQ 953293 dated February 9, 1993.

We followed the analysis of HQ 951157 in HQ 955729 dated April 8, 1994, by stating:

The heating element in question consists of a resistance wire, which is the electric heating resistor, and the hollow metal coil which is the insulating former. HQ 951157, dated February 9, 1993, held, with respect to substantially similar heating elements, that the metal support brackets were not similar to or performed a function as substantial as base plates for smoothing irons and plates for electric cookers, listed in the ENs as examples of additional parts which would remove a heating element from consideration as an electric heating resistor. HQ 951157 went on to state that metallic caps, among other things, which function in part to provide a more even surface area to the element, are such parts. Therefore, an electric heating resistor with metallic cap, in addition to an insulating former, electrical connections and support brackets, would be regarded for tariff purposes as a part. This removes subheading 8516.80.80 from consideration.

In the instant case, we believe that the aluminum housing of the air heater used in diesel engines is the equivalent of the metal support brackets that were described in HQ 951157. The aluminum housing merely holds or contains the heating element coil in place so that it can be attached to the diesel engine, but it does not have a substantial function similar to the items such as base plates for smoothing irons and plates for electric cookers, listed in the ENs as examples of the additional parts which would remove a heating element from consideration as an electric heating resistor in EN 85.16.

Section XVI, Note 2 states, in pertinent part, the following:

Subject to note 1 to this section, note 1 to chapter 84 and to 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, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; (b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517

The heating resistor is a good that is included in heading 8516, HTSUS. Therefore, under Section XVI Note 2(a), the heating resistor would be classified under 8516, HTSUS, and the claim for classification under heading 8409, HTSUS, is rendered moot. Furthermore, we do not believe that the air heater would qualify as a part of a diesel engine that would be classified in heading 8409, HTSUS. In determining whether articles such as the subject merchandise are considered parts, it is a well-established rule that a part of an article is something necessary to the completion of that article. It is an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article. United States v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, T.D. 46,851 (1933), cert denied, 292 U.S. 640 (1934). The rule set out in Willoughby Camera has been modified over the years so that a device may be a part of an article even though the device is not necessary to the operation of the article, provided that once the device is installed the article cannot function properly without it. To meet this test, the device must be dedicated for use upon the article. See Beacon Cycle, 81 Cust. Ct. 46, 50-51, C.D. 4764 (1978). It is our understanding that the air heater is not considered a constituent component part without which an engine would be incomplete because the diesel engine can function without the air heater. Accordingly, we believe the air heaters do not qualify as parts of a diesel engine that would be classified in heading 8409, HTSUS.


The air heating elements for diesel engines are classified in subheading 8516.80.80.00, HTSUSA, as other electric heating resistors, other than those of heading 8545, at the general, column one rate which is duty free. 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.

You are instructed to ALLOW the protest. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision
available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon,

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