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HQ 089391


February 6, 1992

CLA-2 CO:R:C:M 089391 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.80.00

Jerrold E. Anderson
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693

RE: Data recorders; Heading 8520; ENs 85.20; Sound recording apparatus; H. Conf. Rep. No. 576; U.S. v. Corning Glass Works; Bruce Duncan Co., Inc. v. U.S.; check; Webster's Third New International Dictionary; measure; HQ 088025.

Dear Mr. Anderson:

This is in reply to your request of May 17, 1991, for a ruling on the tariff classification of data recorders under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles at issue are data recorders. They record and store information produced by independent transducers in the form of electronic signals on magnetic tape. The recorders are used in testing and measuring applications, although they do not perform any testing or measuring themselves. They are connected to additional equipment such as computers or oscilloscopes so that the recorded data can be interpreted.

There are four types of data recorders depending upon the type of recording media they employ: digital audio tape, compact cassette tape, open reel tape and video cassette tape. The last type does not have the capability to record visual images. Some of the recorders have a small screen which is used merely to display operating menus and monitor the recording level of the recorder.

ISSUE:

Whether the subject recorders are properly classifiable within heading 8520, HTSUS, which provides for "[m]agnetic tape recorders and other sound recording apparatus, whether or not incorporating a sound reproducing device."; or classifiable within heading 9031, HTSUS, which provides for "[m]easuring or checking instruments, appliances and machines . . ."

LAW AND ANALYSIS:

Heading 8520, HTSUS, provides for magnetic tape recorders and other sound recording apparatus. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) state that "[t]his heading covers all sound recording apparatus, whatever the purpose for which it is intended (for example, recording music, educational purposes, conferences, radio, cinema, dictating mail)." ENs 85.20, p. 1368 (1991). Further, they state that "[t]he term 'sound recording apparatus' means apparatus which, on receiving a suitable audio-frequency vibration generated by a sound-wave, so modifies a recording medium as to enable it to be used subsequently to reproduce the original sound-wave." ENs 85.20. The subject data recorders do not satisfy these descriptions. They are primarily used to record and store data in the form of electronic signals, which may only represent sound in some cases. While the ENs are not dispositive, they provide a commentary on the scope of each heading and offer guidance for interpretation of the HTSUS. H. Conf. Rep. No. 576, 100th Cong., 2d Sess., p. 549, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS p. 1582. Accordingly, we find the above ENs instructive for determining that the data recorders do not satisfy the terms of heading 8520, HTSUS.

Heading 9031, HTSUS, provides for "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . . parts and accessories thereof." The subject data recorders satisfy the terms of this heading. They are used to record data in a wide variety of measuring applications such as vibration measurement, the acquisition of meteorological and seismological data, and medical diagnostics. The recorders are used as components in measuring systems which also include sensors and display devices. Therefore, the subject data recorders are properly classifiable within heading 9031, HTSUS.

It is claimed that because the data recorders themselves do not actually perform any measuring, that they, therefore, do not satisfy the terms of heading 9031, HTSUS. The Court of Customs and Patent Appeals (CCPA) addressed the application of the term

"measuring and checking" in United States v. Corning Glass Works, 66 CCPA 25, 586 F.2d 822 (1978). The CCPA stated that "checking instruments" clearly and unambiguously encompasses machines that carry out steps in a process for inspecting. Corning Glass Works, p. 825. In that case, ampules were rapidly rotated, abruptly halted, and then viewed by an operator before the contents ceased swirling, so that the operator could check for foreign matter. This type of machine was determined to be a checking instrument because it carried out steps in a process for inspecting ampules to determine whether they conform to an imperfection free standard. Based on this decision, we do not agree with the above claim.

In Corning Glass Works, the CCPA consulted Webster's Third New International Dictionary to ascertain the meaning of the term "check". Based on this decision, we also consulted Webster's to ascertain the meaning of the term "measure" in HQ 088025 (1/17/91). The term "measure" is described 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 measurement of . . . to compute the size of (an area, object) from dimensional measurements." Webster's Third New International Dictionary, 1400 (1986). The subject data recorders are primarily used in measuring applications. Accordingly, we find the CCPA determination of the scope of the term "check" to be equally applicable to the term "measure". In other words, the term measuring instruments, appliances and machines encompasses devices that carry out steps in a process of measuring. The subject data recorders satisfy this description. They are used to record electronic signals in a process of measuring.

You cite Bruce Duncan Co., Inc., A/C Staalkat of America, Inc. v. United States, 67 Cust. Ct. 430 (1971), in support of the claim that the recorders are not measuring or checking machines. The Court stated that measuring or checking machines must have as their primary or dominant function that of measuring or checking. Bruce Duncan, p. 432. The subject recorders satisfy this description. As discussed previously, they are used primarily in measuring applications. Therefore, we do not find this case instructive for excluding the subject recorders from heading 9031, HTSUS.

Congress has indicated that earlier tariff rulings must not be disregarded in applying the HTSUS. The conference report to the 1988 Omnibus Trade Bill, states "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no
dissimilar interpretation is required by the text of the HTS[US]." H. Rep. No. 576, p. 550. The above discussed cases satisfy these requirements. The nomenclature previously interpreted in these case also involved "measuring or checking" devices, and no dissimilar interpretation is required by the HTSUS. Consequently, we find the rationale of Corning Glass and Bruce Duncan instructive for interpreting the term "measuring or checking" in heading 9031, HTSUS.

Subheading 9031.80.00, HTSUS, provides for "other instruments, appliances and machines." The subject data recorders satisfy the terms of this subheading. They are machines that carry out steps in a process of measuring. As discussed previously, they are used to record electronic signals in a wide variety of measuring applications. Thus, the data recorders are properly classifiable within subheading 9031.80.00, HTSUS.

HOLDING:

The data recorders are classifiable within subheading 9031.80.00, HTSUS, which provides for "other instruments, appliances and machines.", dutiable at the General Column 1 rate of 4.9 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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