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HQ 957105

December 19, 1994

CLA-2 CO:R:C:M 957105 RFA


TARIFF NO.: 9106.90.80

Regional Commissioner of Customs c/o Protest and Control Section
6 World Trade Center
Room 761
New York, NY 10048-0945

RE: Protest No. 1001-94-105255; digital timer; process timer; time switch; ENs 91.06 and 91.07; NYs 855958 and 865684

Dear Regional Commissioner:

The following is our decision regarding Protest No. 1001-94-105255, which concerns the classification of a digital timer under the Harmonized Tariff Schedule of the United States (HTSUS). The subject entry was liquidated on April 29, 1994. The protest was timely filed on July 27, 1994.


The subject merchandise is the Mark-Time Digital Timer, model 26003. The digital timer is a single function timer which is used to count down a set time period from 1 minute up to 15 hours and 59 minutes. At the end of the time period set by the user, an alarm signals. It is in a white, plastic housing with a LCD display and three buttons for "HOUR", "MINUTE", and "START/ RESET". On the back of the housing is a magnetic clip, and an opening for changing the battery.

The merchandise was entered under subheading 9107.00.40, HTSUS, as a time switch. The entry was liquidated under subheading 9106.90.80, HTSUS, as a process timer.

The subheadings under consideration are as follows:

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 (for example, time registers, time-recorders): [o]ther: [o]ther. . .

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

9107.00.40 Time switches with clock or watch movement or with synchronous motor: [v]alued not over $5 each . . . .

Goods classifiable under this provision have a general, column one rate of duty of 15 cents + 4 percent ad valorem + 2.5 cents/jewel.


Is the digital timer classifiable as a process timer or as a time switch under the HTSUS?


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 Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, 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, states 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).

Because the digital timer beeps after a given number of minutes or hours, we find that it meets the definition of a process timer. We note 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 NY 855958, dated September 13, 1990; NY 865684, dated August 14, 1991.

The protestant has stated that the digital timer does not fall within the scope of heading 9106, HTSUS, because it does not contain a striking mechanism which is actuated. We recognize that the tariff terms for this provision refers only to mechanical movements and displays. However, "[t]he tariff schedules are written in the language of commerce, and the terms used are to be given their commercial or common meaning." See Ameliotex, Inc. v. United States, 65 CCPA 22, 25, C.A.D. 1200, 565 F.2d 674, 677 (1977); Esco Mfg. Co. v. United States, 63 CCPA 71, 73, C.A.D. 1167, 530 F.2d 949, 951 (1976).

"It must also be remembered that the tariff statutes were enacted 'not only for the present but also for the future, thereby embracing articles produced by technologies which may not have been employed or known to commerce at the time of the enactment * * *.'" Nec America, Inc. v. United States, 8 CIT 184, 186(1984), citing Corporacion Sublistatica, S.A. v. United States, 1 CIT 120, 126, 511 F.Supp. 805, 809 (1981); See also Davis Turner & Co. v. United States, 45 CCPA 39, 41, C.A.D. 669 (1957).

We find that the digital timer is a technological advancement of the mechanical process timers, as described in EN 91.06, and are therefore classifiable under heading 9106, HTSUS. See Simmon Omega, Inc. v. United States, 83 Cust.Ct. 14, C.D. 4815 (1979), and Trans-Atlantic Co. v. United States, 471 F.2d 1397, 60 CCPA 100, C.A.D. 1088 (1973), in which the courts have held that technological advancements and "improvement in the design of an article does not militate against its continuing to be a form of the named articles."

The protestant claims that the purpose of the timer is to close an electronic switch to actuate an internal alarm after a predetermined time. The protestant concludes that the digital timer is classifiable under heading 9107, HTSUS, as a time switch, and is therefore excluded from classification under heading 9106, HTSUS. EN 91.07, page 1547, states as follows:

This heading covers devices which do not have the character of clocks of heading 91.05, but are mainly designed to make or break electric circuits automatically at given times, usually at times determined according to a previously established daily or weekly programme. To be included in this heading these devices must have a movement of the watch or clock type (including secondary or synchronous motor clock movements) or a synchronous motor with or without reduction gear.

The heading also includes switches for making and breaking the circuit supplying electrical apparatus (television receivers, irons, washing machines, billiard table lights, etc.), switching on when coins are inserted and switching off through the action of a synchronous motor, the interval being determined by the number of coins inserted.

A tariff term that is not defined in the HTSUS or in the EN's is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In Admiral Division of Magic Chef, Inc. v. United States, 14 CIT 868, 875, 754 F.Supp. 881 (1990), the Court defined "time switch", based on its common meaning, as "an electric switch that automatically operates at a set time." The Court held that defrost timers for refrigerators, which make or break electric circuits by activating two sets of electrical contact points automatically upon the completion of some preset time interval and equipped with a synchronous or subsynchronous motor, are provided for eo nomine as "time switches".

In all of the examples listed in EN 91.07 and by the court, a time switch makes an electric circuit to allow for some other activity to take place (i.e., defrost a refrigerator, run a washing machine cycle, turn on a light fixture, etc.). At the end of a set time period, the time switch breaks the electrical circuit and deactivates the function being performed. The digital timer does not meet the definition of a time switch, because it must be manually programmed to enter the time period required by the user. At the end of the time period, an electrical signal is sent to activate an alarm or in this case, a beep, for several seconds. The timing mechanism of the digital timer itself does not make and break the electrical circuit. Therefore, classification under heading 9107, HTSUS, is precluded.


Under the authority of GRI 1, the digital timer is provided for under heading 9106, HTSUS. It is classifiable under subheading 9106.90.80, HTSUS, as other apparatus for measuring intervals of time.

The 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, 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.


John Durant, Director
Commercial Rulings Division

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