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HQ 959726




April 14, 1997

CLA-2 RR:TC:MM 959726 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9105.19.10

Port Director of Customs
1901 Cross Beam Drive
Charlotte, NC 28217

RE: PRD 1512-96-100107; Keywound Travel Alarm Clock; Clocks with Watch Movements; Other Clocks; Headings 9103 and 9105; Subheadings 9103.90.00 and 9105.19.10; Chapter 91, Note 3; Chapter 91, Additional U.S. Note 1(d); Watch or Clock Movement; ENs 91.03 and 91.05; HO 816462.

Dear Port Director:

This our decision on Protest 1512-96-100107, filed against your classification of keywound travel alarm clocks, Model 15-540B. The entries under protest were liquidated on January 19, 1996, and this protest timely filed on March 20, 1996.

FACTS:

The merchandise under protest involves keywound travel alarm clocks, Model 15-540B. The clocks are made of various parts, including a movement. A sample movement is made of components, such as a train, an escapement with a balance wheel, a balance hairspring, and a turning fork, capable of measuring time. These components are enclosed within two basic plates shaped in the form of a circle, flat on one side. The basic plates containing the mechanism are themselves attached to a basic dial support plate.

The merchandise was originally entered under a provision for Other Clocks, under subheading 9105.19.40 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 9103.90.0010, HTSUS, as clocks with watch movements. Protestant, makes reference to Ruling HO 816462 issued by the Port Director, Houston, Texas, on November 28, 1995, which classified the subject keywound travel alarm clocks under subheading 9105.19.10, HTSUS. Protestant claims that the keywound travel alarm clocks are classifiable as Other Clocks under subheading 9105.19.40, HTSUS, based on the premise that the clocks' movements measure more than 12 mm in thickness and 50 mm in diameter.

The provisions under consideration are as follows:

9103 Clocks with watch movements, excluding clocks of heading 9104:

9103.10 Electrically operated:

9103.90.00 Other:...29› each + 5.5% on the case.

9105 Other Clocks:

Alarm Clocks
9105.11 Electrically operated:

9105.19 Other:
With movement measuring not over 50 mm in width or diameter:
9105.19.10 Not constructed or designed to operate for over 47 hours without rewinding...30› each +
6.9% on the case.

Other:
9105.19.40 Valued not over $5 each:...15› each + 6.4%.

ISSUE:

Whether the keywound travel alarm clocks are classifiable as clocks with watch movements under heading 9103, HTSUS, or as Other Clocks under heading 9105, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Chapter 91, Note 3, HTSUS, provides as follows:

For the purposes of this chapter, the expression "watch movement" means devices regulated by a balance wheel and hairspring, quartz crystal or any other system capable of determining intervals of time, with display or a system to which a mechanical display can be incorporated. Such watch movement shall not exceed 12 mm in thickness and 50 mm in width, length or diameter.

Chapter 91, Additional U.S. Note 1(d) provides as follows:

The term "clock movement" means devices regulated by a balance wheel and hairspring, quartz crystal or any other system capable of determining intervals of time, with a display or a system to which a mechanical display can be incorporated. Such clock movements shall either exceed 12 mm in thickness or 50 mm in width, length or diameter, or both.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 91.03 at page 1543 states that heading 9103 covers clocks (including alarm clocks but excluding clocks of heading 91.04) provided they are equipped with watch movements, and are essentially constructed for indicating the time of day. Such watch movements shall not exceed 12 mm in thickness and 50 mm in width, length or diameter.

This EN further states that it should however be noted that the heading excludes (b) clocks (including alarm clocks) which do not satisfy the conditions specified in the paragraph above, for example, pendulum clocks, clocks with any other regulating system capable of determining intervals of time and exceeding 12 mm in thickness or exceeding 50 mm in width, length or diameter and clocks with movements without a regulating system (e.g., driven by synchronous motor). These fall in heading 91.05.

EN 91.05 at page 1544 states that heading 9105 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).

General EN to Chapter 91, at page 1541, states that for the purposes of Note 3 to this Chapter, which defines watch movements, the following methods of measurement apply:

(a) Measurement of thickness: The thickness of a movement is the distance from the outer plane of the dial support (or the visible surface of the display if the latter is incorporated in the movement) to the furthest opposite outer plane, without taking account of any screws, nuts or other fixed parts projecting beyond that plane.

(b) Measurement of width, length or diameter: As appropriate, the width, length or diameter (which are determined by their axis or symmetry) is to be measured without taking the winding spindle or crown into consideration.

The Chapter Notes and Additional U.S. Notes define watch and clock movements almost identically. These Notes define them as devices regulated by a balance-wheel and hairspring, quartz crystal or any other system capable of determining intervals of time, with a display or a system to which a mechanical display can be incorporated. However, the Notes differentiate clock movements from watch movements on the basis of size. The Chapter Notes specify that a watch movement cannot exceed 12 mm in thickness and 50 mm in width, length or diameter. Clocks with this type of movement are classified under heading 9103. Additional U.S. Notes and the ENs state that clock movements shall either exceed 12 mm in thickness or 50 mm in width, length or diameter, or both. Clocks with this type of movements are classified under heading 9105 as Other Clocks not having watch movements. We must then determine what is the actual thickness and the width, length or diameter of the keywound travel alarm clocks' movements.

The ENs provide how to measure the movements. The thickness of movements must be measured from the distance from the outer plane of the dial support (or the visible surface of the display if the latter is incorporated in the movement) to the furthest opposite outer plane, without taking account of any screws, nuts or other fixed parts projecting beyond that plane. The EN is clear as to how to measure the thickness. The movement's width, length or diameter (which is determined by their axis of symmetry) is to be measured without taking the winding spindle or crown into consideration. In the latter instance, the ENs are inexplicit about what part of the movement's symmetry to measure to determine the width, length or diameter.

The ENs indicate that the methods of measurements are provided for the purpose of Note 3, Chapter 91, which gives the aforementioned definition of watch movement. This definition, we believe, focuses on defining movement as a mechanism for measuring time. Based on the definition of Note 3 to Chapter 91, we believe that to obtain the width, length or diameter in this instance, the movement's mechanism in the keywound alarm clocks is the part which should be measured and that the dial support plate must not be taken into account. Since the mechanism is enclosed within two basic plates shaped in the form of a circle, flat on one side, it is appropriate to measure its diameter. The diameter of the sample mechanism submitted by the importer was measured by the U.S. Customs' laboratory and found to be 16 mm in thickness and 49.50 mm in diameter. Accordingly, we disagree with the importer's measurements and conclude that, since the movement measures more than 12 mm in thickness, the movements on the keywound travel alarm clocks, Model 15-540B, are not watch movements and the keywound travel alarm clocks must be classified under heading 9105. Furthermore, since the imported merchandise have clock movements measuring not over 50 mm in diameter and are alarm clocks not designed to operate over 47 hours without rewinding, the keywound travel alarm clocks must be classified under subheading 9105.19.10. We affirm Ruling HO 816462, dated November 28, 1995, classifying the keywound travel alarm clocks, Model 15-540B, as Other Clocks: Alarm Clocks under subheading 9105.19.10.

HOLDING:

Under the authority of GRI 1, the keywound travel alarm clocks, Model 15-540B are provided for in heading 9105. They are classifiable in subheading 9105.19.10, HTSUS.

This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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