CLA-2 OT:RR:CTF:TCM H009364 KSH
Port Director
Customs and Border Protection
3150 Tchulahoma Road Suite 1 Memphis, TN 38118
RE: Internal Advice Request No. 07/002; Classification of Race Car Processing Equipment
Dear Port Director:
This ruling is in response to a request for Internal Advice initiated by
Porter Wright Morris & Arthur, on behalf of its client, PI Research (“requestor”). At issue is the proper classification of the “Delta Clubman”. The request for internal advice is sought in response to a Request for Information (CBP Form 28) issued on April 15, 2005, seeking descriptive literature or information explaining what the merchandise is, where and how it is used and exactly how it operates. The CBP Form 28 noted that the invoiced merchandise was not a part of an ADP machine and appeared to be excluded by Chapter 84, Note 5 (A)(a) of the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise at issue is identified as the Delta Clubman. The Delta Clubman is used to improve vehicle/driver performance around a racing circuit. The Delta Clubman is a data logging machine which contains a central processing unit (CPU) which provides 2MB of logging memory, two built-in accelerometers, six analog channels and three digital channels for recording rate per minute, wheel speed and information from a lap timing beacon. The Delta Clubman also incorporates a number of channels calculated in the logger which can be displayed on a dash. These channels record lateral and inline acceleration, box voltage and box temperature.
The Delta Clubman includes software to be used on a desktop or laptop CPU. The Delta Clubman uses the software for setup, direct calibration of the sensors, determining which channels are displayed on the driver’s dash, receive configuration information and to upload information from the logger.
Data obtained from the Delta Clubman enables drivers to automatically map the circuit on a CPU, analyze speeds through each corner in detail with a map report, compare breaking points on good and bad laps, compare data to the fastest lap, record all channel sensor readings for analysis and engine life, add set-up and track condition details to see what contributed to the fastest lap or what was missing on slower laps.
The Delta Clubman is generally sold as part of a kit which includes a Delta Clubman, and “X Sport display”, a fully terminated System Loom and Analogue Sensor Loom, USB download lead, active wheel-speed sensor, 10-channel beacon receiver, software CD and Delta Clubman Logger Management software.
The instant entry also included an optional strain gauge for pushrod loads, and unspecified optional sensors used for measuring RPM pickups, high pressure sensors for oil, water and fuel lines, low pressure sensor for measuring turbo pressure, temperature sensors for oil, water and air intake, linear potentiometers for measuring damper displacement or throttle and rotary potentiometers for measuring steering angle.
ISSUE:
Whether the Delta Clubman is classified in heading 8471, HTSUS, as automated data processing machines, heading 8473, HTSUS, as parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472, heading 9029, HTSUS, as speedometers and tachometers or heading 9031, HTSUS, as measuring or checking instruments, appliances or machines.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The 2005 HTSUS headings under consideration are as follows:
8471 Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included:
8473 Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472:
9029 Revolution counters, production counters, taximeters, odometers, pedometers and the like; speedometers and tachometers, other than those of heading 9014 or 9015; stroboscopes; parts and accessories thereof:
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
Section XVI, Note 1(m), HTSUS, states that “This section does not cover: Articles of Chapter 90.”
Note 5 to Chapter 84 states, in relevant part:
(B) Automated data processing machines may be in the form of systems consisting of a variable number of separate units. Subject to paragraph (E) below, a unit is to be regarded as being a part of a complete system if it meets all the following conditions:
(a) It is of a kind solely or principally used in an automatic data
processing system;
(b) It is connectable to the central processing unit either directly or through one or more other units; and
(c) It is able to accept or deliver data in a form (codes or signals) which can be used by the system.
* * * *
(E) Machines performing a specific function other than data processing and incorporating or working in conjunction with an automatic data processing machine are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.
Note 2 to Chapter 90, HTSUS, provides in relevant part:
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:
Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8485, 8458 or 9033) are in all cases to be classified in their respective headings;
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;
Note 3 to Chapter 90, HTSUS, states that: “[t]he provisions of note 4 to section XVI apply also to this chapter.” Note 4 to section XVI provides as follows:
Where a machine (including a combination of machines) consists of individual components … intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.
* * * *
The EN to heading 90, (IV) Functional Units, clarifies that the article to which note 4 to section XVI is applied, is classified in Chapter 90.”
The EN to heading 84.71, reads, in relevant part:
(D) SEPARATELY PRESENTED UNITS
This heading also covers separately presented constituent units of data processing systems. These may be in the form of units having a separate housing or in the form of units not having a separate housing and designed to be inserted into a machine (e.g., insertion onto the main board of a central processing unit). Constituent units are those defined in Parts (A) and (B) above and in the following paragraphs, as being parts of a complete system.
A unit is to be regarded as being a part of a complete data processing system, if it performs a data processing function and satisfies the following conditions:
(a) It is of a kind solely or principally used in an automatic data processing system;
(b) It is connectable to the central processing unit either directly or through one or more other units; and
(c) It is able to accept or deliver data in a form (codes or signals) which can be used by the system.
If the unit performs a specific function other than data processing, it is to be classified in the heading appropriate to that function or, failing that, in a residual heading (see Note 5 (E) to this Chapter).
The interconnections may be made by material means (e.g., cables) or by non-material means (e.g., radio or optical links).
The EN to heading 84.73, provides, in part:
Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), this heading covers parts and accessories suitable for use solely or principally with the machines of headings 84.69 to 84.72.
Emphasis in original.
The EN to heading 90.29, provides in relevant part:
(B) SPEED INDICATORS AND TACHOMETERS
These instruments differ from the revolution counters and production counters of Part (A) above in that they indicate the number of revolutions, speed, output, etc., per unit of time (e.g., revolutions per minute, miles per hour, kilometres per hour, metres per minute). They are usually mounted on vehicles (cars, motorcycles, bicycles, locomotives, etc.) or machines (motors, turbines, paper making machines, printing machinery, textile machinery, etc.).
Emphasis in original.
In accordance with Note 1(m) to Section XVI, HTSUS, the Delta Clubman must be excluded from Chapter 90, HTSUS, before consideration can be given to classification within Section XVI.
The Delta Clubman is not classifiable in heading 9027, HTSUS, as it is used to record data in addition to RPM. Specifically, the Delta Clubman also records voltage, pressure, temperature, wheel-speed and beacon information. Consequently, heading 9027, HTSUS, does not fully describe the instant merchandise.
The terms "measuring" and "checking" of heading 9031, HTSUS, are not defined in the HTSUS or in the ENs. In United States v. Corning Glass Works, 66 CCPA 25, 27, 586 F.2d 822, 825 (1978), the court quoted definitions from Webster’s Third New International Dictionary, 381 (1971) (in determining the scope of the provision for measuring and checking Instruments not specially provided for in the predecessor tariff schedule to the HTSUS). "‘Check’ is defined as "to inspect and ascertain the condition of, especially in order to determine that the condition is satisfactory; … investigate and insure accuracy, authenticity, reliability, safety, or satisfactory performance of …; to investigate and make sure about conditions or circumstances…." The term "measure" is defined as follows: "[t]o ascertain the quantity, mass, extent, or degree of in terms of a standard unit or fixed amount …; measure the dimensions of; take the measurements of …; to compute the size of ... from dimensional measurements." Webster’s Third New International Dictionary, 1400 (1971). See HQ 965639, dated September 12, 2002; HQ 954682, July 14, 1994; HQ 950196, dated January 8, 1992.
The requestor maintains that the Delta Clubman is not classifiable in heading 9031, HTSUS, because it does not actually perform any measuring by itself; the primary or dominant function of the system of which it is a part is not to measure any activity and; the recorded information which can be classified as “measured data” is merely to show the driver his performance and not to test anything.
The requestor also maintains that the Delta Clubman is factually distinguishable from past rulings in that it does not measure vibrations, it is not connected to computers at the time of recording, it does not record industrial or mechanical processes data to test an automobile or any part of an automobile, it does not record data to enable the driver or mechanical crew to evaluate the automobile’s performance and it is not used with data acquisition units which initially analyze and/or process data before transmitting the data to the logger.
The Delta Clubman records voltage, pressure, temperature, wheel-speed, beacon information and RPM data. It includes a strain gauge for measuring suspension loading and sensors for measuring RPM pickups, high pressure sensors for oil, water and fuel lines, low pressure sensor for measuring turbo pressure, temperature sensors for oil, water and air intake, linear potentiometers for measuring damper displacement or throttle and rotary potentiometers for measuring steering angle.
Though the Delta Clubman itself does not measure or inspect this data, it is used in the process of measuring or checking. In Corning Glass Works, supra, the court stated that the provision for "checking instruments" clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Consequently, CBP has consistently held that equipment which is principally used in the process of measuring or checking is classifiable under that provision, even if it does not actually perform the measuring or checking operation itself. See HQ 089391, dated February 6,1992; HQ 953382, dated April 15, 1993 and; HQ 953351, dated May 10, 1993.
The Delta Clubman enables drivers to map the circuit, analyze speeds, compare breaking points on good and bad laps, compare data to the fastest lap, record all channel sensor readings for analysis and engine life and add set-up and track condition details to see what contributed to their fastest lap or what was missing in slower laps. Additionally, the strain gauge and sensors unequivocally measure suspension load and pressure or temperature etc. As such the Delta Clubman at issue meets the definition of a functional unit because it consists of individual components that contribute together to the clearly defined function of measuring or inspecting the vehicle or driver’s performance around a racing circuit to improve that performance. At a minimum the Delta Clubman is utilized with the sensors and the CPU to inspect (i.e., to ascertain the condition of driving or performance, especially in order to determine that the condition is satisfactory.) The Delta Clubman is not factually distinguishable from prior rulings which held certain data recorders to be classified in heading 9031, HTSUS, as the merchandise is used in the process of measuring or inspecting. See HQ 961096, dated June 15, 1998 and HQ 952235, dated November 4, 1992. As such, it squarely meets the terms of heading 9031, HTSUS.
The Delta Clubman is excluded from Section XVI by virtue of Note 1(m) to
Section XVI, HTSUS. Moreover, it cannot be classified in heading 8471, HTSUS, or heading 8473, HTSUS, inasmuch as it is not of a kind solely or principally used in an automatic data processing system and it performs a specific function other than data processing. The Delta Clubman is equally, if not principally, used with the sensors. Indeed, the sensors are a necessary prerequisite to enable the Delta Clubman to record the data which can later be analyzed on the CPU. Its function is measuring or inspecting not data processing. See Note 5 to Chapter 84, HTSUS.
HOLDING:
By application of GRI 1, the Delta Clubman is classified in heading 9031, HTSUS. It is specifically provided for in subheading 9031.80.80, HTSUS, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: Other instruments, appliances and machines: Other.” The 2005 general, column one rate of duty is 1.7% ad valorem.
You are to mail this decision to the internal advice requester no later than sixty days from the date of the decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP 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.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division