CLA-2 OT:RR:CTF:TCM H112722 EG
TARIFF No: 9031.80.80
U.S. Customs and Border Protection
Port of Atlanta
4341 International Parkway, Suite 600 Atlanta, GA 30354
Attn: Benita Brewer, Import Specialist
RE: Application for Further Review of Protest No. 1704-10-100023
Dear Port Director:
This is in reference to the Application for Further Review (AFR) of Protest No. 1704-10-100023, timely filed on February 1, 2010, by counsel on behalf of Yokogawa Corporation of America (Yokogawa). The AFR concerns the classification of certain data recorders under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
Yokogawa, the importer of record, describes the merchandise as paperless recorders (Model Nos. MV2048-1-4-2-1-1D/A2, FX112-4-2/C3), pen recorders (Model Nos. 436101-2, 436101-2/A1, 436102/2/P1, 436103-2, 436104-2, 436104-2/A2, SR10000, and SR10002-2) and dot recorders (Model Nos. 436-106-2, 436106-2/C-7). The data recorders are free-standing machines which are connected to sensors on industrial processing equipment. The sensors send electrical signals to the data recorders. The data recorders translate these signals into readable data which describes the operating status of the equipment. The sensors can send information relating to temperature, pressure, flow and other measurements.
The data recorder brochures indicate that they can record data for a variety of industrial processes, including water purification equipment, ceramic processing and the sterilization of pharmaceuticals and foods. The pen and dot recorders provide paper printouts of the industrial equipment’s operating status. The paperless recorder displays data on its monitor and can store data on its internal drive.
The protest at issue involves four entries of data recorders entered between February 6, 2009 and February 11, 2009, under subheading 9030.84.00, HTSUS, which provides in pertinent part for “…other instruments and apparatus for measuring or checking electrical quantities…: [o]ther instruments and apparatus: [o]ther, with a recording device.” The Port of Atlanta (the Port) liquidated the four entries between December 18, 2009 and December 28, 2009, under subheading 9033.00.00, HTSUS, which provides for “[p]arts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” Yokogawa filed its protest on February 1, 2010, claiming that the correct classification for data recorders is under subheading 9030.84.00, HTSUS, or in the alternative, 9031.80.80, HTSUS.
ISSUES:
Whether the data recorders are classifiable under subheading 9030.84.00, HTSUS, 9031.80.80, HTSUS, or 9033.00.00, HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after February 6, 2009. AFR of Protest No. 1704-10-100023 is properly accorded to Yokogawa pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with rulings of the Commissioner of Customs or his designee with respect to the same or substantially similar merchandise. Specifically, Yokogawa alleged that the Port’s decision conflicts with U.S. Customs and Border Protection (CBP) Headquarters Ruling Letters (HQ) 089391, dated February 6, 1992, and HQ 961096, dated June 15, 1998.
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 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
9030 Oscilloscopes, spectrum analyzers and other instruments and apparatus for measuring or checking electrical quantities, excluding meters of heading 9028; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations; parts and accessories thereof:
9030.84 Other instruments and apparatus:
9030.84.00 Other, with a recording device.
* * *
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
9031.80 Other instruments, appliances and machines:
9031.80.80 Other.
* * *
9033.00.00 Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.
* * *
Yokogawa entered the data recorders under heading 9030, HTSUS, which provides for “…other instruments and apparatus for measuring or checking electrical quantities.” The tariff term “checking” is not defined by the HTSUS. Relying on the common meaning of the term, the U.S. Court of Customs and Patent Appeals (CCPA) (predecessor to the U.S. Court of Appeals for the Federal Circuit) has defined the term “check” as “to inspect and ascertain the condition of [a thing].” United States v. Corning Glass Works, 66 CCPA 25, 27 (1978) (citing Webster’s Third New International Dictionary 381 (1971)). The CCPA further stated that “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Id. at 25.
The data recorders display information about the operating status of industrial equipment for inspection purposes. The data recorders therefore fall under the definition of checking instruments. Additionally, the data recorders display electrical quantity data such as voltage, current, resistance or power. However, the data recorders can also display data relating to steam, temperature, pressure and other processing factors. Given that the data recorders are checking instruments for more than just electrical quantities, they are precluded from heading 9030, HTSUS.
CBP has classified independent and free-standing data recorders under heading 9031, HTSUS, which provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter.” See HQ 089391, dated February 6, 1992 and HQ 961096, dated June 15, 1998. Applying GRI 1, data recorders fall squarely within the common meaning of the term “checking instruments.” Therefore, the subject data recorders are classifiable under heading 9031, HTSUS.
The Port liquidated the four entries under heading 9033, HTSUS, which provides for “Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” In NY 861163, dated April 5, 1991, CBP classified digital strip chart recorders designed to be component equipment for larger instruments under heading 9033, HTSUS. These digital strip chart recorders would be installed in instruments such as electrocardiographs, thermographs, dataloggers and small text terminals. Once installed, these chart recorders would provide data printouts of information supplied by the larger instrument. In HQ 952499, dated March 26, 1993 and in NY H80308, dated June 5, 2001, CBP classified components of data recorders under heading 9033, HTSUS.
However, Note 2 to Chapter 90 states that “…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 . . . are in all cases to be classified in their respective headings.” Therefore, a part or accessory of a machine which is described by a heading must be classified in that heading rather than as a part or accessory of the larger machine.
Even if the subject data recorders are parts or accessories of machines in Chapter 90, they are also classified under heading 9031, HTSUS, as checking instruments. By application of Note 2 to Chapter 90, parts and accessories included in a heading of Chapter 90 must be classified in that heading. The subject data recorders are included in heading 9031, HTSUS. As a result, they should be classified as checking instruments rather than as parts and accessories of a larger machine.
To the extent that any prior rulings conflict with this decision, CBP will initiate a 19 U.S.C. § 1625(c) revocation process to revoke them.
HOLDING:
By application of GRI 1 and Note 2 to Chapter 90, the subject data recorders are classified in subheading 9031.80.80, HTSUS, as “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 general column one rate of duty at the time of entry was 1.7% ad valorem. You are instructed to GRANT the protest.
You are to mail this decision, together with the CBP 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 the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings, 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