HQ 957776 - Protest 2704-94-103071; Timer Clocks; Stop-watches; Count-Up Timers; Count-Down Timers; Time of Day; Essential Character; GRI 3(c); ENs 91.05, 91.06; HQ 957105; NYs 839892, 876939, 894814, 894550, 865684, 862916, 855958 - United States International Trade Commision Rulings

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HQ 957776

June 9, 1995

CLA-2 R:C:M 957776 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9102.91.20, 9106.90.80

District Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-94-103071; Timer Clocks; Stop-watches; Count-Up Timers; Count-Down Timers; Time of Day; Essential Character; GRI 3(c); ENs 91.05, 91.06; HQ 957105; NYs 839892, 876939, 894814, 894550, 865684, 862916, 855958

Dear District Director:

The following is our decision regarding Protest 2704-94-103071, which concerns the classification of certain timer clocks under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise consists of three categories of timer/clocks: count-down timers (models TC-103, TC-203, and TC-303) with repeat function; count-up timers (models TC-106 and TC-306); and combination count-up and count-down timers (models TC-2, TC-23, TC-102, TC-204, and TC-302) with repeat function except for TC-23.

Count-Down Timers:
The TC-303 consists of a 100-minute countdown timer with an electronic alarm. It has a squared-plastic housing with a magnetic clip-stand attached to the back. On the front of the TC-303, there is a liquid crystal display (LCD) measuring 1.5 inches long and .75 inches high. Next to the LCD are three buttons, marked as "MIN", "SEC", and "ST/SP" ("start/ stop").

The TC-203 consists of a 100-minute countdown timer with an electronic alarm. It has a squared-plastic housing with a magnetic clip-stand attached to the back. On the front of the TC-203, there is an LCD measuring .75 inches long and approximately .5 inches high. Next to the LCD are three buttons, marked as "MIN", "SEC", and "ST/SP".

The TC-103 is a count-down timer with an electronic alarm. It has a triangular-shaped plastic base with an LCD measuring 1.5 inches long and .75 inches high. Next to the LCD are three buttons, marked as "MIN", "SEC", and "ST/SP" .

Count-Up Timers:
The TC-106 consists of count-up timer, time of day, and a date calendar. It has a triangular-shaped plastic base with an LCD measuring 1.5 inches long and .75 inches high. Next to the LCD are three buttons, marked as "MODE", "SET", and "ST/SP".

The TC-306 consists of a count-up timer, time of day, and a date calendar. It has a squared-plastic housing with a magnetic clip-stand attached to the back. On the front of the TC-306, there is an LCD measuring 1.5 inches long and approximately .75 inches high. Next to the LCD are three buttons, marked as "MODE", "SET", and "ST/SP".

Count-Down/Count-Up Timers:
The TC-2 is a count-up timer and a count-down timer, of 20 hours, with an electronic alarm. It has a squared-plastic housing with a magnetic clip-stand attached to the back. On the front of the TC-2, there is an LCD measuring .75 inches long and approximately .5 inches high. Next to the LCD are three buttons, marked as "HOUR", "MIN", and "ST/SP" .

The TC-23 is a count-up timer and a count-down timer, of 20 hours, with an electronic alarm. It has a U-shaped plastic housing with a clip attached to the back. On the front of the TC-23, there is an LCD measuring .75 inches long and approximately .5 inches high. Next to the LCD are three buttons, marked as "HR", "MIN", and "START/STOP".

The TC-102 is a count-up timer and a count-down timer with an electronic alarm. It has a triangular-shaped plastic base with an LCD measuring 1.5 inches long and .75 inches high. Next to the LCD are three buttons, marked as "HOUR", "MIN", and "ST/SP" .

The TC-204 is a count-up timer and a count-down timer, of 20 hours, with an electronic alarm and a time of day function. It has a squared-plastic housing with a magnetic clip-stand attached to the back. On the front of the TC-204, there is an LCD measuring .75 inches long and approximately .5 inches high. Next to the LCD are three buttons, marked as "HOUR", "MIN", and "ST/SP".

The TC-302 is a count-up timer and a count-down timer, of 20 hours, with an electronic alarm. It has a squared-plastic housing with a magnetic clip-stand attached to the back. On the front of the TC-302, there is an LCD measuring 1.5 inches long and approximately .75 inches high. Next to the LCD are three buttons, marked as "HOUR", "MIN", and "ST/SP".

The merchandise was entered under subheading 9102.91.20, HTSUS, as electronic LCD stop-watches. The entry was liquidated on August 12, 1994, under subheading 9106.90.80, HTSUS, as electronic timer clocks. The protest was timely filed on November 10, 1994.

Classification of the merchandise under subheading 9105.11.40, HTSUS, as other electronic clocks, is also under consideration.

The following subheadings are under consideration:

9102.91.20: Wrist watches, pocket watches and other watches, including stop watches, other than those of heading 9101: [o]ther: [b]attery powered: [w]ith opto-electronic display only. . . . .

Goods classifiable under this provision have a column one, general rate of duty of 3.9 percent on the movement and case plus 5.3 percent on the battery ad valorem.

9105.11.40: Other clocks: [a]larm clocks: [b]attery or AC powered: [w]ith opto-electronic display only. . . . .

Goods classifiable under this provision have a column one, general rate of duty of 3.9 percent on the movement and case plus 5.3 percent on the battery ad valorem.

9106.90.80: Time of day recording apparatus and apparatus for measuring, recording or otherwise indicating intervals of time, with clock or watch movement or with synchronous motor . . .: [o]ther: [o]ther. . . .

Goods classifiable under this provision have a column one, general rate of duty of 45 cents each plus 7 plus 2.5 cents per jewel ad valorem.

ISSUE:

Are the subject timers classifiable as stop-watches, or as process timers, or as other clocks, not specified elsewhere, under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The protestant claims that the subject merchandise is classifiable under heading 9102, HTSUS, as stop watches. In support of this position, protestant cites to NY 839892, dated April 20, 1989, in which Customs classified a stopwatch/timer with a textile neckcord attached to the bottom of the casing under subheading 9102.91.20, HTSUS. Additional U.S. Note 1(a) to chapter 91, HTSUS, states that:

1. For the purposes of this chapter:

(a) The term "watches" embraces timepieces (including timepieces having special features, such as chronographs, calendar watches and watches designed for use in skin diving) of a kind for wearing or carrying on the person whether or not the movement contained therein conforms to the definition of "watch movements" in note 3, above. Timepieces incorporating a stand, however simple, are not classifiable as watches.

To be classified as a stop-watch under heading 9102, HTSUS, the subject merchandise must be of a kind for wearing or carrying on the person. Any timepiece which incorporates a stand no matter how simple, cannot be classified as a "watch". The merchandise in NY 839892 meets the criteria of Additional U.S. Note 1(a) to chapter 91, HTSUS, because it is designed to be worn on the person by use of the textile neckcord. See also NY 876939 (August 11, 1993). However, examination of the submitted samples indicate that all of the models, with the exception of the TC-23, fail to meet the criteria of Additional U.S. Note 1(a) to chapter 91, HTSUS, because they either have a triangular base stand or a magnetic clip-stand (designed for use as attachment to either metal or use as a stand on a tabletop). The only model which meets the definition of a watch is the TC-23 because it is a flat, U-shaped plastic timer with a clip which can be attached to an article of clothing. It has no base stand or a magnetic clip-on stand. Because the TC-23 timer can be worn on the person, we find it is classifiable under subheading 9102.91.20, HTSUS, as a stop-watch.

In HQ 957105, dated December 19, 1994, Customs determined the classification of a digital timer which was used to count down a set time period from 1 minute up to 15 hours and 59 minutes. In that ruling, Customs cited to the Harmonized Commodity Description and Coding System Explanatory Notes (EN) which constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN 91.06(11), pages 1545-1547, which stated, in pertinent part:

Provided they are operated by a movement of the watch or clock type (including secondary or synchronous motor clock movements) or by a synchronous motor with or without reduction gear, this covers:

(i) A wide range of apparatus for recording the time of day at which some action or operation is effected;
and (ii) Apparatus, not elsewhere specified, for measuring, recording or otherwise indicating intervals of time.

The heading includes:

(11) Process timers for short periods of time. These ring a bell after a given number of minutes (usually up to 60); they are equipped with an alarm movement and a dial normally bearing the figures 0-10, 0-30, or 0-60. They are used in all fields where the duration of a process must be controlled.

However, time switches, which differ from process timers in that instead of actuating a striking system at a given time, they "make" or "break" an electric circuit, are excluded (heading 91.07).

Customs then found that because the digital timer beeps after a given number of minutes or hours, that it met the definition of a process timer. Customs further noted that nothing in EN 91.06 limits process timers for only up to 60 minutes. Customs has consistently classified these types of timers under heading 9106, HTSUS. See HQ 957105. See also NY 894814 (March 2, 1994); NY 894550 (February 9, 1994); NY 865684 (August 14, 1991); NY 862916 (May 9, 1991); NY 855958 (September 13, 1990). Based upon HQ 957105 and several NY rulings, we find that the timers with count-down function only (models TC-103, TC-203, and TC-303), are classifiable under subheading 9106.90.80, HTSUS.

The protestant also asserts that the timers with the count-up feature cannot be classified under heading 9106, HTSUS, because that heading precludes stopwatches (or the count-up feature) from being classified there. EN 91.06, pages 1546-1547, states, in pertinent part, that:

The heading includes:

(8) Stop-clocks and other timers used for measuring the duration of some processes. These have a seconds dial, a dial for totaling minutes, and a lever for starting and stopping.

(9) Timers for registering the duration of telephone conversations; these operate like stop-clocks and may have a striking mechanism.

(13) Billiards meters which employ a clock movement to indicate the time in play or the amount payable based on that time.

(14) Time clocks for chess-players, consisting of two clock or watch movements with dials indicating time in hours and minutes, and two buttons or levers by which the movements can be started and stopped.

Because all of the above listed exemplars indicate count-up timers, including those labeled as stop-clocks and other timers, we believe that the subject timers with count-up functions are classifiable under heading 9106, HTSUS. The TC-2, TC-102, and TC-302 timers are count-down as well as count-up timers. We find that they are classifiable under subheading 9106.90.80, HTSUS, as other timers.

For the classification of the TC-106 and TC-306 timers which have the count-up timer, time of day, and a date calendar functions, and the TC-204 with count-up and count-down timers as well as the time of day function, we look at where the timing functions would be classified. EN 91.05, page 1544, states that heading 9105, HTSUS, only covers: "timekeepers, not classified elsewhere in the Chapter, essentially constructed for indicating the time of day; they must, therefore, have movements other than watch movements. Clocks and alarm clocks with watch movements (as defined by Chapter Note 3) are excluded (heading 91.03)."

Time of day functions are provided for as clocks under heading 9105, HTSUS, while the count up/down functions are provided for under heading 9106, HTSUS. We believe that both headings describe the merchandise and therefore classification cannot be determined under GRI 1. Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(a) is not applicable here because the merchandise is not incomplete or unfinished. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies.

GRI 3(a) states that if a product is classifiable in two or more headings by application of GRI 2(b), then the:
heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Because the functions keeping the time of day and the count up/down timers fall under separate headings in the tariff schedule which describe only a portion of the merchandise, the headings are to be regarded as equally specific under GRI 3(a). Therefore, GRI 3(a) fails in establishing classification, and GRI 3(b) becomes applicable. GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character.

EN IX to GRI 3(b), page 4, states

[f]or the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. (emphasis in original)

Because the merchandise is classifiable under two headings, we must determine which function provides the essential character. EN VIII to GRI 3(b), page 4, states that:

[t]he factors which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

After examining the TC-106, the TC-306, and the TC-204, we find that neither the time of day nor the count up and count down features impart the essential character. Therefore, we must apply GRI 3(c), which states that:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Based upon application of GRI 3(c), we find that the TC-106, the TC-306, and the TC-204 are classified under heading 9106, HTSUS. It is provided for under subheading 9106.90.80, HTSUS, as other electronic timer clocks.

HOLDING:

The TC-23 timer which can be worn on the person, is classifiable under subheading 9102.91.20, HTSUS, as a stop-watch.

The timers with count-down function only (models TC-103, TC-203, and TC-303), are classifiable under subheading 9106.90.80, HTSUS, as other electronic timer clocks.

The TC-2, TC-102, and TC-302 timers with count-down as well as count-up functions, are classifiable under subheading 9106.90.80, HTSUS, as other electronic timers.

Based upon application of GRI 3(c), the TC-106, the TC-306, and the TC-204 are classifiable under subheading 9106.90.80, HTSUS, as other electronic timer clocks.

The protest should be GRANTED IN PART for the TC-23 timer. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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