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HQ 086765


July 18, 1990

CLA-2 CO:R:C:G 086765 CMS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9029.10.80

Dr. Lee Steven Glass
9608 Southeast 40TH Street
Mercer Island, WA 98040

RE: Kenz Calorie Counter; Calorie Counting Device Incorporating A Pedometer Which Calculates The Calories Consumed By Users During Periods Of Inactivity And Exercise

Dear Dr. Glass,

This is in response to your request dated March 19, 1990, for a classification ruling on the Kenz Calorie Counter. Our ruling follows.

FACTS:

The merchandise consists of a device designated as the "Kenz Calorie Counter". The device is used to determine the number of calories the user consumes during periods of inactivity and exercise. It measures approximately 3" x 2 1/2" x 5/8" and is designed to be worn on the belt. The device has five buttons for the input of data regarding the user's sex, age, height and weight. The unit incorporates a pedometer. From the data provided by the pedometer in conjunction with the four user data factors, the device computes the number of calories consumed by the user. The number of calories consumed is displayed on the unit's LCD every three seconds during periods of exercise, and every minute during inactivity.

ISSUE:

Is the merchandise classified in Heading 9029 as "[r]evolution counters, production counters, taximeters, odometers, pedometers and the like", or in Heading 9031 as measuring or checking instruments not specified elsewhere?

LAW AND ANALYSIS

Heading 9029 in pertinent part describes "[r]evolution counters, production counters, taximeters, odometers, pedometers and the like". The merchandise under consideration incorporates a pedometer. The Explanatory Notes to Heading 9029, p. 1523 describe pedometers as follows: "These instruments have a watch type mechanism and are used for an approximate measurement of distances". The merchandise under consideration measures distance as part of the process of counting the number of calories consumed, but it does not provide any reading of the distance travelled and cannot be described as a pedometer. However, if the non-pedometer functions are described by Heading 9029 then the device might be classified under the heading's description for "...pedometers and the like" (emphasis added).

The device under consideration counts calories. The Explanatory Notes to Heading 9029, p. 1521 provide that "[t]his heading includes...[c]ounters indicating a total number of units of any kind (revolutions, items, length, etc.)..." (emphasis added). The Explanatory Notes at p. 1522 provide that Heading 9029 covers devices which count revolutions, items, length, etc. but give a reading in another form (e.g., revolution counters which count revolutions but give a reading in the number of working hours of a machine, and taximeters which measure time and distance but give a reading in the taxi fare payable). Heading 9029 would similarly cover devices which measure distance travelled but give a reading in the number of calories consumed.

The Kenz Calorie Counter is described in the Heading 9029 provision for "[r]evolution counters, production counters, taximeters, odometers pedometers and the like...". The device is classified in subheading 9029.10.80.

HOLDING:

Kenz Calorie Counter is classified as "[r]evolution counters, production counters, taximeters, odometers, pedometers and the like...", other than taximeters, in 9029.10.80, HTSUSA.

Sincerely,


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