CLA-2 OT:RR:CTF:TCM H244110 TNA
TARIFF No: 9031.80.80
Paul M. Laurenza, Esq.
Dykema Gosset PLLC
Franklin Square, Third Floor West
1300 I Street N.W.
Washington, DC 20005
RE: Revocation of NY N184613; Classification of the PAK MKII multi-channel measurement system device
Dear Mr. Laurenza:
This is in reference to your request for reconsideration, dated June 17, 2013, of New York Ruling Letter (“NY”) N184613, dated October 13, 2011, on behalf of Muller-BBM VibroAkustik Systeme, Inc (“Muller”). NY N184613 concerned the classification of a mobile multi-channel measurement system device under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N184613 and found it to be incorrect. For the reasons set forth below, we hereby revoke NY N184613.
FACTS:
The subject merchandise consists of the PAK MKII, a compact mobile multi-channel measurement system device that is used for a wide range of vibration, acoustical, and other analyses. It consists of an aluminum outer casing with insertable electronic cards that record measurement data via a cable connected to the device and the data collection’s source, such as a microphone, accelerometer, pressure transducers, etc.
The PAK MKII records electronic signal data in a variety of measuring and acquisition applications, such as acoustic and vibration measuring. After recording these signals, the subject merchandise translates the signals into readable data and sends them to additional equipment, usually a computer, to interpret the data. The subject merchandise is connected to these computers via Ethernet or wireless means. Depending on what type of measurement sensor to which the subject merchandise is connected, the PAK MKII can process and record data such as acceleration, strain, displacement, rotational speed, force, sound, pressure, and temperature.
The PAK MKII can be used with a single data source or with multiple data sources. It is used primarily (though not exclusively) in automotive and aerospace applications. In the industry, this merchandise is known as a measuring “front end” that work with a variety of sensors as part of an overall measurement system. The PAK MKII can be universally configured for use with almost any common sensors; as a result, it is adaptable to a wide range of measurement-related applications. Pictures of the subject merchandise submitted with this request for reconsideration show the subject PAK MKII as a square device positioned outside an automobile. In these pictures, PAK MKII is receiving signals from that automobile with data from such devices as accelerometers, microphones, etc. and transmitting them to a computer.
ISSUE:
Whether the PAK MKII is classifiable under subheading 9030.84.00, HTSUS, as “… other instruments and apparatus for measuring or checking electrical quantities… Other instruments and apparatus: Other, with a recording device”; under subheading 9031.80.80, HTSUS, as “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter… Other instruments, appliances and machines: Other”; or under subheading 9033.00.00, HTSUS, as “Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90?”
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied in order.
The 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.
Note 2 to Chapter 90, HTSUS, states the following:
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 8487, 8548 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;
(c) All other parts and accessories are to be classified in heading 9033.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither 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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 9030, HTSUS, states, in pertinent part, the following:
(B) OSCILLOSCOPES, SPECTRUM ANALYSERS
AND OTHER INSTRUMENTS AND APPARATUS
FOR MEASURING OR CHECKING ELECTRICAL QUANTITIES
Instruments and apparatus for measuring or checking electrical quantities may be indicating or recording types…
The main types of electrical measurements are:
Measurement of electric currents. This is carried out, in particular, by
means of galvanometers or amperemeters (ammeters).
The EN to heading 9031, HTSUS, states, in pertinent part, the following:
In addition to profile projectors, this heading covers measuring or checking instruments, appliances and machines, whether or not optical…
(I) MEASURING OR CHECKING INSTRUMENTS,
APPLIANCES AND MACHINES
(A)
These include:…
(18) Apparatus for measuring or detecting vibrations, expansion, shock or
jarring, used on machines, bridges, dams, etc…
(29) Special electrical instruments for measuring stress and strain. They are
based, for example, on the following principles :
Variations in the resistance of a wire when subjected to stress (strain gauges). However, electrical resistors known as “ strain gauges ” fall in heading 85.33.
(ii) Variations of capacity between specially constructed electrodes.
(iii) Electric potentials produced by quartz or similar crystals when subjected to pressure.
This group also includes dynamometers, used to measure the compression or tractive force of hydraulic presses, rolling mills, material testing machines, etc., and also for load tests (aircraft). They usually consist of a metal body (cylinder, ring, etc.) to which stress is applied, and of a measuring apparatus, graduated in units of weight, which records any change in the shape of the metal body.
However, dynamometers for testing the properties of materials are excluded (heading 90.24).
The EN to heading 9033, HTSUS, states, in pertinent part, the following:
This heading covers all parts and accessories for machines, appliances, instruments or apparatus of this Chapter, other than:
(1) Those mentioned in Chapter Note 1…
(2) Those covered by Chapter Note 2(a), which constitute in themselves
machines, appliance, instruments or apparatus of any particular heading of Chapter 90 or of Chapter 84, 85 or 91 (other than the residual headings 84.87, 85.48 or 90.33). It therefore follows that separately presented articles of this type must be classified in their respective headings…
(3) Those identifiable as suitable for use solely or principally with a particular
kind of machine, appliance, instrument or apparatus, or with a number of
machines, appliances instruments or apparatus of the same heading of this Chapter; these are classifiable, by application of Chapter Note 2(b), in the same heading as the relevant machines, appliances, instruments or apparatus.
NY N184613 classified the subject merchandise in heading 9033, HTSUS, as “Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of chapter 90.” However, Note 2 to Chapter 90, HTSUS, requires that if parts and accessories for the merchandise of this chapter are described by any of the headings of Chapters 84, 85, 90 or 91, HTSUS, then they must be classified in their respective headings. See Note 2 to Chapter 90, HTSUS. Therefore, a part or accessory of a machine which by itself is a good of any of these headings must be classified in that heading rather than as a part or accessory of the larger machine. As a result, we first examine classification in these headings.
Heading 9031, HTSUS, provides for “Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof.” 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 (1978), however, the court defined the term “check” 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….” See United States v. Corning Glass Works, 66 CCPA 25, 27 (1978) (“Corning Glass Works”). The court further stated that the provision for “checking instruments” clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Id. at 27.
Adhering to this interpretation, CBP has consistently held that equipment that 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, e.g., HQ 089391, dated February 6, 1992; HQ 953382, dated April 15, 1993; and HQ H009364, dated November 23, 2009. Furthermore, CBP has defined the term “measure” as “[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.” See Webster’s Third New International Dictionary, 1400 (1971). See also HQ H163998, dated May 15, 2012; HQ H009364, dated November 23, 2009; HQ 965639, dated September 12, 2002; HQ 954682, July 14, 1994.
Furthermore, heading 9031, HTSUS, includes apparatus for measuring or detecting vibrations, expansions, shock or jarring; such apparatus are used on machines, bridges, dams, etc. See EN 90.31. The heading also covers special electrical instruments for measuring stress and strain. See EN 90.31. The subject merchandise records electronic signal data on many variables, including vibrations, strain, acoustics, rotational speed, temperature, etc. It then sends these data to a computer for analysis. Thus, although the subject PAK MKII does not measure these variables on its own, it performs steps in the process of measuring. As a result, the subject merchandise meets the cited definition of “measuring,” and it comports with the exemplars of heading 9031, HTSUS. As such, the PAK MKII is classified in heading 9031, HTSUS.
Thus, by application of Note 2 to Chapter 90, HTSUS, the subject merchandise is classified as a measuring instrument of heading 9031, HTSUS, rather than as a part and accessory of heading 9033, HTSUS. This classification is consistent with prior rulings that classify nearly identical merchandise, including independent and free-standing data recorders, in heading 9031, HTSUS. See, e.g., HQ H112722, dated September 30, 2010; HQ H009364, dated November 23, 2009; HQ 954194, dated June 7, 1993; HQ 952235, dated November 4, 1992; HQ 089391, dated February 6, 1992; HQ 961096, dated June 15, 1998.
Lastly, we note that prior CBP rulings have considered heading 9030, HTSUS, which provides for “…other instruments and apparatus for measuring or checking electrical quantities” when classifying similar merchandise. See, e.g., HQ H112722. However, the subject PAK MKII records electronic signals in a variety of measuring applications, such as acoustic and vibration, but it also displays data relating to temperature, pressure, displacement, and other processing factors. Given that the PAK MKII is a measuring instrument for more than just electrical quantities, it is precluded from heading 9030, HTSUS.
HOLDING:
Under the authority of GRI 1, the subject PAK MKII is classified in heading 9031, HTSUS. It is specifically classified 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 column one general rate of duty is 1.7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N184613, dated October 13, 2011, is REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division