CLA-2 RR:CR:GC 961096 PH
Ms. Lisa C. Schneider
Associated Customhouse Brokers, Inc.
Water Tower Park
1099 Jan Street, Building C-5
Post Office Box 22670
Rochester, New York 14692-2670
RE: Recorders of process variables; measuring or checking
instruments; parts and accessories; United States v. Corning
Glass Works, 66 CCPA 25 (1978); HQs 089391; 952235; 953382;
954856
Dear Ms. Schneider:
This is in reference to your request on behalf of ABB
Instrumentation, Inc., to the Customs National Commodity
Specialist Division in New York, New York, dated October 14,
1997, for a ruling as to the tariff classification under the
Harmonized Tariff Schedule of the United States (HTSUS) of three
models of process recorders. Your letter was referred to this
office for reply. We regret the delay in responding to your
request.
FACTS:
The merchandise under consideration consists of three
models, PR100, PX100, and PX105, of process recorders. Each
model is electrically operated. According to the brochures
provided, the process recorders record information, but do not
themselves perform any testing or measuring. One of the
brochures describes the function of the process recorders as
recording and displaying various parameters "related to
industrial processes."
The subheadings under consideration are as follows:
9026.90.20: Instruments and apparatus for measuring or
checking the flow, level, pressure or other
variables of liquids or gases (for example, flow
meters, level gauges, manometers, heat meters),
excluding instruments and apparatus of heading
9014, 9015, 9028 or 9032; parts and accessories
thereof: ... Parts and accessories: Of electrical
instruments and apparatus.
The 1998 general column one rate of duty for goods classifiable
under this provision is 1.5% ad valorem.
9031.80.80: 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 1998 general column one rate of duty for goods classifiable
under this provision is 2.3% ad valorem.
9033.00.00: Parts and accessories (not specified or included
elsewhere in this chapter) for machines,
appliances, instruments or apparatus of chapter
90.
The 1998 general column one rate of duty for goods classifiable
under this provision is 4.5% ad valorem.
ISSUE:
Whether the process records are classifiable as parts and
accessories of electrical instruments and apparatus for measuring
or checking the flow, level, pressure or other variables of
liquids or gases in subheading 9026.90.20, HTSUS; other
instruments, appliances and machines for measuring or checking in
subheading 9031.80.80, HTSUS; or parts and accessories for
machines, appliances, instruments or apparatus of Chapter 90,
HTSUS, in subheading 9033.00.00, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRIs), taken
in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the EN should always be consulted. See T.D. 89-80, published in
the Federal Register August 23, 1989 (54 FR 35127, 35128).
To be classifiable under heading 9026, HTSUS, an instrument
or apparatus must be for measuring or checking variables of
liquids or gases only (in addition to heading 9026, see EN
90.26). According to the available information, the process
recorders in this case are used to record process variables of
various industrial processes; i.e., they are not limited to use
in measuring or checking variables of liquids or gases.
Accordingly, as they are not described by this provision, they
may not be classified in subheading 9026.90.20, HTSUS.
Customs has repeatedly held that data recorders used as
components in measuring systems that include sensors and display
devices are classifiable as measuring or checking instruments,
appliances and machines, even though the data recorders
themselves do not perform any measuring or checking function.
(See HQs 089391 dated February 6, 1992; 952235 dated November 4,
1992; 953382 dated April 15, 1993; and 954856 dated September 10,
1993.) This position is based on, and consistent with, a Court
interpretation of the term "measuring and checking" (United
States v. Corning Glass Works, 66 CCPA 25, 586 F. 2d 822, C.A.D.
1216 (1978), in which the Court applied the dictionary definition
to conclude as follows: "Applying that definition, checking
instruments' clearly and unambiguously encompasses machines, like
those imported here, that carry out steps in a process for
inspecting ampuls ..." (66 CCPA at 27; emphasis added)).
Accordingly, the process recorders, similar in function to those
in HQ 089391, supra, are classifiable as other instruments,
appliances and machines for measuring or checking in subheading
9031.80.80, HTSUS.
HOLDING:
The process records are classifiable as other instruments,
appliances and machines for measuring or checking in subheading
9031.80.80, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division