CLA-2 OT:RR:CTF:TCM HQ H068286 TNA
Port Director, Port of Buffalo
U.S. Customs and Border Protection
Vehicle Exports 1 Lewiston Bridge Plaza Lewiston, NY 14092
Attn: Lawrence J. Mruk, Supervisory Import Specialist
RE: Internal Advice Request 09/025; classification of the Leveloader Gold.
Dear Port Director:
This is in response to your letter, dated June 30, 2009, forwarding with comments the Request for Internal Advice submitted by Solinst Canada Ltd. (“Solinst” or “Requester”), on January 9, 2009, concerning the proper classification of the Leveloader Gold (“Leveloader”) under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The Leveloader Gold is a handheld data storage/transfer unit dedicated for use with Solinst’s Levelogger, a water level and temperature recording device. The Leveloader is used to download and store the multiple data files it retrieves from the Levelogger and to transfer those to a PC. It can also be used to display the last recorded reading in real-time, to scroll through data, and to program the Levelogger (e.g., to restart the Levelogger, change a project’s name, location, and recording times, etc.).
The device is equipped with 8 MB non-volatile FLASH memory and proprietary hardware and Levelogger PC software. It is imported together with USB or RS323 PC cables for connection to a PC, a cable for direct connection to a Levelogger, and a cable for connection to a Direct Read Cable of a Levelogger deployed in the water.
ISSUE:
Whether the Leveloader is classified in heading 8471, HTSUS, as a machine for transcribing data onto data media in coded form, or in heading 9015, HTSUS, as an accessory for a surveying, hydrographic, oceanographic, hydrological, meteorological or geophysical instrument or appliance?
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, GRIs 2 through 6 may then be applied in order.
The HTSUS provisions 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:
8471.90.00 Other
9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof:
9015.90.00 Parts and accessories
Legal Note 2 to Chapter 90, HTSUS, provides, in pertinent part, that:
Subject to note 1 above [not at issue here], parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
(a) 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 8487, 8548 or 9033) are in all cases to be classified in their respective headings;
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 nor 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. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 8471, HTSUS, provides, in pertinent part:
(B) MACHINES FOR TRANSCRIBING DATA ONTO DATA MEDIA
IN CODED FORM
This group includes :
(1) Machines for transferring coded information from one medium to another. These machines can be used either to transfer coded information from one type of data medium to a different type or to transfer it to another medium of the same type. The latter category includes reproducing machines which are used to reproduce all or part of the data on a master tape, magnetic or optical discs (e.g., DVD, CD-ROM) by making a new tape or disc.
The EN to heading 9015, HTSUS, provides, in pertinent part:
(III) HYDROGRAPHIC INSTRUMENTS
Hydrography is the scientific description and plotting of water courses, depths, tide levels, etc. The majority of the instruments used for such purposes are, therefore, covered by the previous paragraphs.
(IV) OCEANOGRAPHIC OR HYDROLOGICAL INSTRUMENTS
(1) Special level recorders, for recording fluctuations in the level of lakes or rivers; they consist essentially of a float and recorder.
(2) Bucket wheel current meters and hydrometric paddle wheels, for measuring the speed of currents in rivers, canals, etc.
(3) Swell or tide recorders.
Industrial instruments based on the same working principles as the instruments described in paragraphs (IV) (1) and (2) above (e.g., liquid level indicators, flow meters, etc.) are, however, excluded (heading 90.26).
PARTS AND ACCESSORIES
Subject to the provisions of Notes 1 and 2 to this Chapter (see the General Explanatory Note), this heading also covers parts and accessories of the goods of this heading. Such parts and accessories include: tripods specially designed for instruments used in geodesy, topography, etc.; supporting rods for optical squares; tripods for staves; arrows for land chains.
Requester argues for classification of the Leveloader in subheading 9015.90.00, HTSUS, as an accessory of a hydrological instrument, because it is used exclusively with the Levelogger. Hydrological goods of heading 9015, HTSUS, are used for the scientific description and plotting of water courses, depths, tide levels, etc. See EN 90.15. The Levelogger measures groundwater levels and temperatures for environmental engineering and research. As a result, it is described by the terms of heading 9015, HTSUS.
The term accessory is not defined in the HTSUS or in the ENs. Relying on the common meaning of the term, the Court of International Trade has defined “accessory” as something that “must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (CIT 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002). In subsequent rulings, CBP has added that an accessory is generally an article that is not necessary to enable the goods with which it is used to fulfill their intended function. An accessory must be identifiable as being intended solely or principally for use with a specific article. Accessories are of secondary or subordinate importance, not essential in and of themselves. They must, however, somehow 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, e.g., HQ H021138, dated November 10, 2008; HQ 966736, dated November 17, 2003; HQ 966354, dated June 18, 2003.
Applying Rollerblade and our administrative precedent, we find that the Leveloader is an “accessory” of the Levelogger. It relates directly to the Levelogger, it is of secondary importance, and, while it is not necessary to enable the Levelogger to complete its intended function, it improves the operation of the Levelogger by making it a more effective tool. In addition, the Leveloader is designed solely for use with the Levelogger. However, if the subject merchandise is described by the terms of another heading, it cannot be classified in subheading 9015.90.00, HTSUS, as an accessory. Specifically, Legal Note 2(a) to Chapter 90, HTSUS, requires that parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 are in all cases to be classified in their respective headings. Furthermore, Additional U.S. Rule of Interpretation 1(c) states that unless the context otherwise requires, a provision for parts and accessories shall not prevail over a more specific provision for that part or accessory.
Heading 8471, HTSUS, provides in part for “machines for transcribing data onto data media in coded form and machines for processing such data.” This heading includes machines for transferring coded information from one medium to another. See EN 84.71(B)(1) (“These machines can be used either to transfer coded information from one type of data medium to a different type or to transfer it to another medium of the same type.”). The Leveloader is a device used primarily to transfer the coded data recordings it downloads from the Levelogger and to a remote PC. Thus, it is described by the terms of heading 8471, HTSUS. As a result, as per Legal Note 2(a) to Chapter 90, HTSUS, the Leveloader is precluded from classification in heading 9015, HTSUS.
HOLDING:
By application of GRI 1 (Note 2(a) to Chapter 90, HTSUS), the Leveloader is classified in heading 8471, HTSUS. It is specifically provided for in subheading 8471.90.00, which provides in pertinent part for “[M]achines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included: Other.” The applicable duty rate is Free.
You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on CBP’s website, located 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