CLA-2 CO:R:C:M 089391 AJS
Jerrold E. Anderson
Katten Muchin & Zavis
525 West Monroe Street
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).
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
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,
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
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
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,
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.
John Durant, Director
Commercial Rulings Division