CLA-2 CO:R:C:M 955064 RFA
District Director of Customs
1000 Second Avenue
Suite 2200
Seattle, WA 98104
RE: Protest No. 3004-92-100136; Optimizer Systems With Scan
Heads; Controller; Optical Measuring instruments; Headings
8537 and 9031; EN 85.37; HQ 085281
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 3004-92-100136, which concerns the
classification of a complete Optimizer System with Scan Heads,
and the Scan Heads imported separately, under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise consists of a complete Dynavision M-
Series Optimizer System with Scan Heads which is a device used in
saw mill operations to determine the thickness of logs in order
to control the cutting of the logs in the most advantageous
manner. The Optimizer System with Scan Heads is a general
purpose profile scanner capable of supplying three-dimensional
profiles of the logs.
The M-Series consists of 2 Scan Heads (top and bottom) and 1
controller board, model number DSP. Each Scan Head places 6
laser beams on the target surface at 4 inch intervals. The
top/bottom scanning arrangement measures true thickness/profile
over a 2 foot section with one Scan Head on top and the other on
the bottom. The DSP controller board collects measurements from
these heads and stores them for use by other computers for
optimization. One board profile is in buffered memory available
for access while the next board is being scanned. The use of
multiple heads and DSP controller boards allows for scanners of
any length up to 28 feet.
The Scan Heads use only solid state components including
solid state lasers. It measures the distance from the Scan Heads
to the surface of the object being measured. There are 6
measurement points for each Scan Head. The measurements are
taken at approximately 1000 per second. The actual number of
measurements stored per 4 inch profile is dependent on the
encoder interfaced to the controller boards, model DSP-02.
The DSP-02 controller board is an interface between the Scan
Heads and an IBM-PC computer. The board receives the analog
video information from the Scan Heads and converts them to
distance readings to the surface of an object being measured. It
then sends these distance readings to memory where it can be read
by an IBM-PC computer which makes the necessary calculations and
then instructs the saws on how to slice the logs to achieve the
best results of a maximum yield of usable lumber.
The Optimizer System with Scan Heads and the Scan Heads
imported separately were entered under subheading 9031.40.00,
HTSUS, as optical measuring and checking instruments, eligible
for duty-free treatment under the Canadian Free Trade Agreement
(CFTA). The entries of the Optimizer System with Scan Heads were
liquidated under subheading 8537.10.00, HTSUS, as numerical
control panels with voltage not exceeding 1,000 V., ineligible
for duty-reduction treatment under the CFTA. The entries of the
Scan Heads alone were liquidated under subheading 9031.40.00,
HTSUS, ineligible for duty-free treatment under the CFTA.
The entries of the subject merchandise were liquidated on
June 19, 1992. The protest was timely filed on September 17,
1992.
The subheadings under consideration are as follows:
8537.10.00: Boards, panels (including numerical control
panels), consoles, desks, cabinets and other
bases, equipped with two or more apparatus of
heading 8535 or 8536, for electric control or
the distribution of electricity, including
those incorporating instruments or apparatus
of chapter 90, other than switching apparatus
of heading 8517: [f]or a voltage not
exceeding 1,000 V. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 5.3 percent ad valorem. The
CFTA rate of duty in 1992 was 1 percent ad valorem.
The CFTA rate of duty in 1991 was 2.1 percent ad
valorem.
9031.40.00 Measuring or checking instruments, appliances
and machines, not specified or included
elsewhere in this chapter. . . .: [o]ther
optical instruments and appliances. . . .
Goods classifiable under this provision have a general,
column one rate of duty of 10.0 percent ad valorem.
The CFTA rate of duty is free.
ISSUE:
Whether the Optimizer System and Scan Heads are classifiable
as other optical measuring instruments or as numerical control
panels with voltage not exceeding 1,000 V., under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
In HQ 085281, dated November 8, 1989, Customs held that an
Optimizer System, a computerized scanning device, which measured
the dimensions of logs and boards and determined the best way to
cut them in order to maximize the value or volume of lumber, was
classifiable under subheading 8537.10.00, HTSUS, as numerical
control panels with voltage not exceeding 1,000 V. Customs based
this decision after consulting the Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) for heading
8537, HTSUS.
The ENs 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. EN 85.37, page 1391, states that articles of
heading 8537, HTSUS:
. . .consist of an assembly of apparatus of the kind
referred to in the two preceding headings (e.g.,
switches and fuses) on a board, panel, console, etc.,
or mounted in a cabinet, desk, etc. They usually also
incorporate meters, and sometimes also subsidiary
apparatus such as transformers, valves, voltage
regulators, rheostats or luminous circuit diagrams.
* * * * * *
The heading also covers: . . . (3) "[p]rogrammable
controllers" which are digital apparatus using a
programmable memory for the storage of instructions for
implementing specific functions such as logic,
sequencing, timing, counting and arithmetic, to
control, through digital or analog input/output
modules, various types of machines.
In HQ 085281, Customs held that the Optimizer System meets
the description of heading 8537, HTSUS, because it "processes
digital signals in a computer which makes calculations and then
issues instructions to various machines which enable them to cut
lumber in the most efficient manner." We find that the subject
merchandise operates in the same manner as the merchandise in HQ
085281. Therefore, based upon this ruling and EN 85.37, we find
that the subject Optimizer System with Scan Heads is classifiable
as numerical control panels with voltage not exceeding 1,000 V.,
under subheading 8537.10.00, HTSUS.
The Scan Heads, which incorporate optical elements to
measure the thickness of the logs, are classifiable under
subheading 9031.40.00, HTSUS, when entered separately.
Therefore, the only remaining issue is whether the Scan Heads
entered separately under subheading 9031.40.00, HTSUS, qualify
for CFTA treatment. The protestant has provided proper
documentation as to the claim of CFTA eligibility. We have
reviewed those documents and agree that both the Optimizer System
with Scan Heads and the Scan Heads entered separately, qualify
for CFTA treatment.
HOLDING:
The Optimizer System with Scan heads is classifiable under
subheading 8537.10.00, HTSUS, as numerical control panels with
voltage not exceeding 1,000 V., eligible for CFTA treatment. The
Scan Heads, entered separately, are classifiable under subheading
9031.40.00, HTSUS, as optical measuring instruments, eligible for
CFTA treatment.
You should deny the protest, except to the extent that
classification of the merchandise as indicated above results in a
partial allowance. 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, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director