Recorders of process variables; measuring or checkinginstruments; parts and accessories; United States v. CorningGlass Works, 66 CCPA 25 (1978); HQs 089391; 952235; 953382;954856

HQ 961096 June 15, 1998 CLA-2 RR:CR:GC 961096 PH CATEGORY: Classification TARIFF NO.: 9026.90.20; 9031.80.00; 9033.00.00 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