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HQ 955151




January 5, 1994

CLA-2 CO:R:C:M 955151 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8524.90.40; 9030.89.00

Mr. Marc Andreas Vogg
OMICRON electronic GmbH
A-6945 Hohenems/Austria, Ang.-Kauffmann-Str.8

RE: CMC 56 Test System for protection relays and measuring transducers; EN 85.24; EN 85.43; Chapter 85, note 6; Section XVI, note 4; Chapter 90, note 3; HQ 953551; HQ 089391; HQ 087498; U.S. v. Corning Glass Works

Dear Mr. Vogg:

This is in response to your letter of September 30, 1993, requesting the classification of the CMC 56 Test System (hardware, software and amplifier), the CMC 56 Software and the CMA Current Amplifier, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The CMC 56 is a test system for protection relays and measuring transducers in utilities. The basic system consists of: (1) CMC 56 Test Set; (2) CMC 56 Software; and (3) CMA Current Amplifier (as option). The system is controlled by a personal computer (PC) normally supplied by the consumer.

The CMC 56 contains six power generators, a high-precision measuring section with two analog (for transducer signals) and ten digital (for relay contacts) measuring inputs, and the complete electronic control unit. Every function is controlled by the software on the PC. The CMA Current Amplifier is used to test protection relays that require higher current and/or power than is delivered or need more than three current sources.

ISSUE:

Whether the CMC 56 Test System is classifiable under - 2 -
subheading 9030.89.00, HTSUS, the CMC 56 Software is classifiable under subheading 8524.90.40, HTSUS, and the CMA Current Amplifier is classifiable under subheading 8543.80.90, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

1. CMC 56 Test System

Note 3 to chapter 90, HTSUS, provides that the provisions of note 4 to section XVI apply to chapter 90. Note 4 to section XVI provides as follows:

Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the [headings of chapter 90], then the whole falls to be classified in the heading appropriate to that function.

The system in question is a test system for protection relays and measuring transducers in utilities. For example, the system is capable of testing distance relays by detecting the switch characteristics of the relay and then transferring the results to the software for evaluation and report generation.

Heading 9030, HTSUS, provides for instruments and apparatus for measuring or checking electrical quantities. It is our opinion that the components of the CMC 56 Test System contribute together to a clearly defined function covered by heading 9030, HTSUS. As such, the system, with the exception of the software, is classifiable under subheading 9030.89.00, HTSUS.

2. CMC 56 Software

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings.

Heading 8524, HTSUS, provides for recorded media for sound or other similarly recorded phenomena. EN 85.24, pg. 1373, states that heading 8524, HTSUS, covers "[m]edia on which phenomena other than sound or image have been recorded (e.g., magnetic tapes, disc packs, diskettes and cassettes for [automatic data processing machines]." Thus, the CMC 56 Software, when imported separately, is classifiable under subheading 8524.90.40, HTSUS.

Moreover, note 6 to chapter 85 states that "[r]ecords, tapes and other media of heading 8523 or 8524 remain classified in those headings, whether or not they are entered with the apparatus for which they are intended [underlining added]." Thus, the CMC 56 Software remains classified under subheading 8524.90.40, HTSUS, regardless of whether it is entered with the CMC 56 Test System.

3. CMA Current Amplifier

You suggest that the amplifier is classifiable under subheading 8543.80.90, HTSUS, which provides for other electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter. EN 85.43, pg. 1402, states that heading 8543, HTSUS, "covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature . . . [emphasis in original]." It is our opinion that the amplifier is more specifically covered by heading 9030, HTSUS.

While the amplifier does not perform any measuring or checking by itself, it is principally used in the process of measuring or checking. In HQ 953551, dated May 10, 1993, HQ 089391, dated February 6, 1992, and HQ 087498, dated October 9, 1990, Customs held that equipment which is principally used in the process of measuring or checking is classifiable as a measuring or checking instrument, even if it does not actually perform the measuring or checking operation itself. See United States v. Corning Glass Works, 66 CCPA 25, 586 F.2d 822 (1978) (wherein the court stated that the provision for "checking instruments" clearly and unambiguously encompasses machines that carry out steps in a process for inspecting). Therefore, the amplifier is classifiable as an instrument for measuring or checking electrical quantities under subheading 9030.89.00, HTSUS.

HOLDING:

The CMC 56 Test System, with the exception of the software, is classifiable under subheading 9030.89.00, HTSUS, which provides for other instruments and apparatus for measuring or checking electrical quantities. The CMA Current Amplifier, when - 4 -
imported separately, is classifiable under subheading 9030.89.00, HTSUS. The corresponding rate of duty for articles of this subheading is 4.9% ad valorem.

The CMC 56 Software, when imported separately or with the CMC 56 Test System, is classifiable under subheading 8524.90.40, HTSUS, which provides for other recorded media for sound or other similarly recorded phenomena. The corresponding rate of duty for articles of this subheading is 9.7›/mý of recording surface.

Sincerely,

John Durant, Director
Commercial Rulings Division

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