CLA-2 CO:R:C:M 957105 RFA
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, NY 10048-0945
RE: Protest No. 1001-94-105255; digital timer; process timer;
time switch; ENs 91.06 and 91.07; NYs 855958 and 865684
Dear Regional Commissioner:
The following is our decision regarding Protest No. 1001-94-105255, which concerns the classification of a digital timer
under the Harmonized Tariff Schedule of the United States
(HTSUS). The subject entry was liquidated on April 29, 1994.
The protest was timely filed on July 27, 1994.
FACTS:
The subject merchandise is the Mark-Time Digital Timer,
model 26003. The digital timer is a single function timer which
is used to count down a set time period from 1 minute up to 15
hours and 59 minutes. At the end of the time period set by the
user, an alarm signals. It is in a white, plastic housing with a
LCD display and three buttons for "HOUR", "MINUTE", and "START/
RESET". On the back of the housing is a magnetic clip, and an
opening for changing the battery.
The merchandise was entered under subheading 9107.00.40,
HTSUS, as a time switch. The entry was liquidated under
subheading 9106.90.80, HTSUS, as a process timer.
The subheadings under consideration are as follows:
9106.90.80: Time of day recording apparatus and apparatus
for measuring, recording or otherwise
indicating intervals of time, with clock or
watch movement or with synchronous motor (for
example, time registers, time-recorders):
[o]ther: [o]ther. . .
Goods classifiable under this provision have a general,
column one rate of duty of 45 cents each + 7 percent ad
valorem + 2.5 cents/jewel.
9107.00.40 Time switches with clock or watch movement or
with synchronous motor: [v]alued not over $5
each . . . .
Goods classifiable under this provision have a general,
column one rate of duty of 15 cents + 4 percent ad
valorem + 2.5 cents/jewel.
ISSUE:
Is the digital timer classifiable as a process timer or as a
time switch under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Cooperation
Council's official interpretation of the HTSUS. While not
legally binding, 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 FR
35127, 35128 (August 23, 1989). EN 91.06(11), pages 1545-1547,
states in pertinent part:
Provided they are operated by a movement of the
watch or clock type (including secondary or synchronous
motor clock movements) or by a synchronous motor with
or without reduction gear, this covers:
(i) A wide range of apparatus for recording the
time of day at which some action or operation
is effected;
and (ii) Apparatus, not elsewhere specified, for
measuring, recording or otherwise indicating
intervals of time.
* * * *
The heading includes:
* * * *
(11) Process timers for short periods of time. These
ring a bell after a given number of minutes
(usually up to 60); they are equipped with an
alarm movement and a dial normally bearing the
figures 0-10, 0-30, or 0-60. They are used in all
fields where the duration of a process must be
controlled.
However, time switches, which differ from
process timers in that instead of actuating a
striking system at a given time, they "make" or
"break" an electric circuit, are excluded (heading
91.07).
Because the digital timer beeps after a given number of
minutes or hours, we find that it meets the definition of a
process timer. We note that nothing in EN 91.06 limits process
timers for only up to 60 minutes. Customs has consistently
classified these types of timers under heading 9106, HTSUS. See
NY 855958, dated September 13, 1990; NY 865684, dated August 14,
1991.
The protestant has stated that the digital timer does not
fall within the scope of heading 9106, HTSUS, because it does not
contain a striking mechanism which is actuated. We recognize
that the tariff terms for this provision refers only to
mechanical movements and displays. However, "[t]he tariff
schedules are written in the language of commerce, and the terms
used are to be given their commercial or common meaning." See
Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200,
565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA
71, 73, C.A.D. 1167, 530 F.2d 949, 951 (1976).
"It must also be remembered that the tariff statutes were
enacted 'not only for the present but also for the future,
thereby embracing articles produced by technologies which may not
have been employed or known to commerce at the time of the
enactment * * *.'" Nec America, Inc. v. United States, 8 CIT 184,
186(1984), citing Corporacion Sublistatica, S.A. v. United
States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also
Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669
(1957).
We find that the digital timer is a technological
advancement of the mechanical process timers, as described in EN
91.06, and are therefore classifiable under heading 9106, HTSUS.
See Simmon Omega, Inc. v. United States, 83 Cust.Ct. 14, C.D.
4815 (1979), and Trans-Atlantic Co. v. United States, 471 F.2d
1397, 60 CCPA 100, C.A.D. 1088 (1973), in which the courts have
held that technological advancements and "improvement in the
design of an article does not militate against its continuing to
be a form of the named articles."
The protestant claims that the purpose of the timer is to
close an electronic switch to actuate an internal alarm after a
predetermined time. The protestant concludes that the digital
timer is classifiable under heading 9107, HTSUS, as a time
switch, and is therefore excluded from classification under
heading 9106, HTSUS. EN 91.07, page 1547, states as follows:
This heading covers devices which do not have the
character of clocks of heading 91.05, but are mainly
designed to make or break electric circuits
automatically at given times, usually at times
determined according to a previously established daily
or weekly programme. To be included in this heading
these devices must have a movement of the watch or
clock type (including secondary or synchronous motor
clock movements) or a synchronous motor with or without
reduction gear.
* * * * *
The heading also includes switches for making and
breaking the circuit supplying electrical apparatus
(television receivers, irons, washing machines,
billiard table lights, etc.), switching on when coins
are inserted and switching off through the action of a
synchronous motor, the interval being determined by the
number of coins inserted.
A tariff term that is not defined in the HTSUS or in the
EN's is construed in accordance with its common and commercial
meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89,
673 F.2d 380 (1982). Common and commercial meaning may be
determined by consulting dictionaries, lexicons, scientific
authorities and other reliable sources. C.J. Tower & Sons v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).
In Admiral Division of Magic Chef, Inc. v. United States, 14
CIT 868, 875, 754 F.Supp. 881 (1990), the Court defined "time
switch", based on its common meaning, as "an electric switch that
automatically operates at a set time." The Court held that
defrost timers for refrigerators, which make or break electric
circuits by activating two sets of electrical contact points
automatically upon the completion of some preset time interval
and equipped with a synchronous or subsynchronous motor, are
provided for eo nomine as "time switches".
In all of the examples listed in EN 91.07 and by the court,
a time switch makes an electric circuit to allow for some other
activity to take place (i.e., defrost a refrigerator, run a
washing machine cycle, turn on a light fixture, etc.). At the
end of a set time period, the time switch breaks the electrical
circuit and deactivates the function being performed. The
digital timer does not meet the definition of a time switch,
because it must be manually programmed to enter the time period
required by the user. At the end of the time period, an
electrical signal is sent to activate an alarm or in this case, a
beep, for several seconds. The timing mechanism of the digital
timer itself does not make and break the electrical circuit.
Therefore, classification under heading 9107, HTSUS, is
precluded.
HOLDING:
Under the authority of GRI 1, the digital timer is provided
for under heading 9106, HTSUS. It is classifiable under
subheading 9106.90.80, HTSUS, as other apparatus for measuring
intervals of time.
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, this decision, together
with the Customs Form 19, should be mailed by your office 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 take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division