CLA-2 CO:R:C:M 950928 AJS
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
3(c)(vii).
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
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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
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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.
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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.
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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