HQ 0950928 - Chartpad; electronic integrator; ENs 90.31 (5); H. Conf. Rep. No. 576; Heading 9017; ENs 90.17; Keuffel & Esser Co. v. U.S.; F. Weber Co., Inc. v. U.S.; planimeters; HQ 082127; Chapter 85, note 6; United States-Canada Free-Trade Agreement; General Note - United States International Trade Commision Rulings

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HQ 950928

February 11, 1992

CLA-2 CO:R:C:M 950928 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9031.80.00; 8524.90.40

Ms. Sharon Stinson
Marketing Representative
BMP Energy Systems LTD.
1100, 777-8th Ave., SW
Calgary, Alberta
Canada T2P 3R5

RE: Chartpad; electronic integrator; ENs 90.31 (5); H. Conf. Rep. No. 576; Heading 9017; ENs 90.17; Keuffel & Esser Co. v. U.S.; F. Weber Co., Inc. v. U.S.; planimeters; HQ 082127; Chapter 85, note 6; United States-Canada Free-Trade Agreement; General Note

Dear Ms. Stinson:

Your letter of November 25, 1991, requesting a tariff classification of the "ChartPad" and "BMP 7000", has been referred to this office for reply.

FACTS:

The chartpad system consists of a digitizing tablet, a stylus, serial interface cable and floppy disk. The "chartpad" which you inquire about consists only of the tablet, stylus and software. The user supplies an IBM-compatible PC, line printer and all other components. The tablet is currently made in the United States by Houston Instruments. In Canada, a plastic overlay is added to the tablet, the tablet's settings are modified, and new software is added. This overlay is used to hold charts in place during tracing.

The chartpad is used to interpret orifice meter charts and then produce an integrator count to be used in calculating gas volume. The operator re-traces each of the lines on a chart separately. Sampler points collected by the digitizing tablet are used to calculate a linear average for each line. These
averages are then associated to determine the integrator count. This count is used in the equation for determining gas volume. The chartpad can also be used to interpret positive displacement or turbine charts, reverse arc charts, gravity and temperature charts, or any circular chart format.

The BMP 7000 is a PC-based electronic integrator which is designed specifically for reading orifice charts. It cannot be used for any other purpose. The integrator contains a built-in central processing unit. It is also supplied with a full color VGA (Video Graphics Array) monitor, full size keyboard, motor control pedal, monitor stand, and a 3 1/2" floppy diskette containing integration software.

The process for re-tracing charts with the integrator is more complex than with the chartpad. A motor control pedal is depressed, causing a circular drive on the top of the integrator to rotate. The orifice chart is firmly attached to that drive. While the chart is rotating, the operator uses the arm controls to manipulate the pens on the integrator, actually tracing the two lines simultaneously. The resulting integrator count is then used to calculate gas volume.

ISSUE:

Whether the chartpad and integrator are properly classifiable within heading 9017, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "[d]rawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators) . . ."; or classifiable within heading 9031, HTSUS, which provides for "[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter . . ."

Whether the subject floppy disk and diskette are properly classifiable within subheading 8524.90.40, HTSUS, which provides for "other" recorded media for sound or other similarly recorded phenomena; or classifiable with the device which they are entered (i.e., chartpad or integrator).

LAW AND ANALYSIS:

Heading 9031, HTSUS, provides for measuring or checking instruments, appliances and machines. The subject devices are used to re-trace orifice meter charts and then produce an integrator count to be used in calculating gas volume. You state that other means of interpreting these types of gas charts are planimeters and optical scanners. The Harmonized Commodity

Description and Coding System Explanatory Notes (ENs) state that measuring or checking instruments, appliances and machines include planimeters, for measuring plane area (e.g., on plans, diagrams, skins or hides.) ENs 90.31 (5), p. 1530 (1991). Planimeters are devices for measuring plane area in which a tracing point combined with a measuring device follows the outline of the area to be measured. ENs 90.31. This heading also includes integrators, harmonic analyzers and other instruments based on the planimetric principle and capable of measuring other factors (e.g., volume, moments of inertia). ENs 90.31. The subject merchandise satisfies this description. Essentially, they are instruments based on the planimetric principle that use a stylus or pen to re-trace charts in order to measure gas volume. 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 chartpad and integrator satisfy the terms of heading 9031, HTSUS. More specifically, they are described within subheading 9031.80.00, HTSUS, which provides for "other instruments, appliances and machines".

Heading 9017, HTSUS, provides for drawing, marking-out or mathematical calculating instruments. It has been suggested that the subject articles are classifiable as mathematical calculating instruments because they are used to calculate gas volumes. Mathematical calculating instruments are described as slide rules, disc calculators, cylindrical calculators and other calculating instruments based on the slide rule or other mathematical calculating principles including, for instance, pocket-type adding and subtracting devices operated by the selection of numbers with a stylus according to a given procedure. ENs 90.17, p. 1486 (1991). This group also includes rules and discs for calculating photographic exposure times on adjustment by reference to the condition of the sky, time of day, aperture setting, type of subject and sensitivity of emulsion. ENs 90.17. The subject devices do not satisfy these descriptions. As discussed previously, they are measuring instruments described within heading 9031, HTSUS. Accordingly, the chartpad and integrator do not satisfy the terms of heading 9017, HTSUS, and cannot be classified therein.

In Keuffel & Esser Co. v. United States, 56 Treas. Dec. 902 (1929), the Customs Court held that planimeters were classifiable as mathematical instruments under the Tariff Act of 1922. See also F. Weber Co., Inc. v. United States, 71 Treas. Dec. 761 (1937). 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 that "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, 100th Cong., 2D Sess. 548, 550 (1988). The above decisions do not satisfy these requirements. The nomenclature of 1922 and 1930 is different from the HTSUS, and the ENs explicitly state that planimeters are not classifiable as mathematical instruments under the Harmonized System. Thus, we do not find the above decisions instructive for determining the classification of the subject merchandise under the HTSUS.

In HQ 082127 (10/16/89), Customs addressed the classifi- cation of computer mice and tablets. We classified these tablets within subheading 9017.20.80, HTSUS, as drawing instruments. This conclusion was based on the fact that these tablets utilized technologies necessary to create accurate drawings. This decision is cited as support for the classification of the subject merchandise as drawing instruments. However, these tablets are different than the subject chartpad and integrator. These tablets were used for drawing, menu selection, and moving text or graphics on a computer screen. As discussed previously, the chartpad and integrator are used to re-trace charts to measure gas volume according to the planimetric principle. As such, we are of the view that they are properly classifiable within subheading 9031.80.00, HTSUS.

Heading 8524, HTSUS, provides for records, tapes and other recorded media for sound or other similarly recorded phenomena. The subject devices consist of a floppy disk and diskette with software appropriate for each system. These disks satisfy the terms of this heading. More specifically, they are described within subheading 8524.90.00, HTSUS, which provides for "other" recorded media. Media of heading 8524, HTSUS, is to remain classified in this heading, whether or not it is entered with the apparatus for which it is intended. Chapter 85, note 6. Accordingly, the subject disks are classified within the above subheading even though they are entered with the chartpad and integrator.

It is claimed that the subject merchandise is manufactured in Canada, except for the digitizing tablet and stylus. Goods originating in the territory of Canada are eligible for treatment under the United States-Canada Free-Trade Agreement (CFTA). See General Note 3(c)(vii), HTSUS. However, information has not been provided to establish whether the subject merchandise satisfies all of the relevant legal requirements of the CFTA. Accordingly, status under the CFTA cannot be determined at this time.

HOLDING:

The chartpad and integrator are classifiable within subheading 9031.80.00, HTSUS, which provides for other measuring and checking instruments, appliances and machines. This merchandise is dutiable at the General Column 1 rate of 4.9 percent ad valorem, or 2.9 percent ad valorem if eligible for treatment under the CFTA.

The subject floppy disks are classifiable within subheading 8524.90.40, HTSUS, which provides for "other" recorded media. This merchandise is dutiable at the General Column 1 rate of 9.7 cents/m2 of recording surface, or 5. 8 cents/m2 of recording surface if eligible for treatment under the CFTA.

Sincerely,

John Durant, Director
Commercial Rulings Division?

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