CLA-2:CO:R:C:M 956944 JAS
District Director of Customs
1 east Bay Street, Rm. 104
Savannah, GA. 31401
RE: PRD 1703-94-100085; Controllers for Paper Making Machines
and Coaters, Paper Making, Paper Finishing, Subheading
8439.20.00; Control Panels, Heading 8537, Section XVI,
Note 2; Denial of Claim for Failure to Provide Evidence,
19 CFR 174.13(a)(6)
Dear Sir:
This is our decision on Protest No. 1703-94-100085, filed
against your action in classifying control panels, logic
cabinets, equipment cabinets, junction boxes and temperature
measuring stations from Finland for use with paper making and
paper finishing machines. The entry under protest was liquidated
on May 6, 1994, and this protest timely filed on July 25, 1994.
FACTS:
The articles are temperature measuring stations and logic
cabinets and other controllers, the latter used to monitor the
various components of modern paper making machines and on-line
coaters or finishing machines. The temperature measuring
stations are not described in the protest file or in any of the
references offered by protestant. The only description offered
on the control devices is in literature relating to control
panels and control desks, and indicates only that all machine
equipment such as actuators, pumps, motors, valves, etc., are
controlled by programmable logic.
Protestant maintains only that these articles are designed
exclusively for paper making or paper finishing machines, cannot
be reassembled into other machines, and that the paper machines
cannot operate without them. - 2 -
The articles were entered under a duty-free provision in
heading 8439 as machinery for making paper or paperboard. The
local import specialist liquidated the entry under a provision in
heading 8537 noting that these articles all perform a control
function.
The provisions under consideration are as follows:
8439 Machinery for making paper of fibrous
cellulosic material or for making or
finishing paper or paperboard; parts thereof:
8439.20.00 Machinery for making paper or paperboard
...Free
8439.30.00 Machinery for finishing paper or
paperboard...2 percent
8439.99 Parts:
Other:
8439.99.10 Of machinery for making paper
or paperboard...Free
8439.99.50 Of machinery for finishing paper
or paperboard...3 percent
* * * *
8537 Boards, 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:
8537.10 For a voltage not exceeding 1,000 V:
8537.10.90 Other...5.3 percent
ISSUE:
Whether the temperature measuring stations and the
controllers are machinery for making paper or for finishing
paper.
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 - 3 -
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.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the Customs Cooperation
Council's 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).
Under 19 U.S.C. 1514(c)(1), a protest of a decision under
subsection (a) of section 1514 must set forth distinctly and
specifically each decision as to which protest is made. In
addition, the Customs Regulations require that a protest set
forth the nature of, and justification for the objection set
forth distinctly and specifically with respect to each decision.
19 CFR 174.13(a)(6). The scope of review in a protest filed
under 19 U.S.C. 1514 is limited to the administrative record. In
acting on a protest, however, Customs lacks the legal authority
to assume facts and arguments that are not presented and,
therefore, not in the official record. In this case, protest is
properly made against your decision to classify the temperature
control stations in subheading 8537.10.90, HTSUS. However,
protestant has submitted no evidence in support of the claim
under subheading 8439.20.00, HTSUS, or the related parts
provision, nor is there other evidence of record from which we
can independently determine the validity of the claim. The
protest is therefore denied as to this merchandise based on
protestant's failure to comply with the requirements of 19 CFR
174.13(a)(6).
With respect to the controllers, there is no argument
advanced that they in any way make or finish paper or paperboard.
Protestant's argument is that they are parts of paper making or
paper finishing machines. Goods which are parts of machines of
any heading in chapter 84 or chapter 85 are to be classified in
accordance with Section XVI, Note 2, HTSUS. Under Note 2(a), if
the control devices are included in any heading of chapter 84 or
chapter 84 they are in all cases to be classified in that
heading.
Heading 8537 includes both programmed and programmable bases
for electric control. Relevant ENs at p. 1391, indicate under
(3) that "Programmable controllers" of heading 8537 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 - 4 -
digital analog/output modules, various types of machines. A
programmable controller's ultimate purpose is to control output
devices. It does this by reading input signals from pushbuttons,
contacts or switches and deciding what the outputs should be,
based on the user's program logic. It then takes the logic-level
signals from the program logic solver and converts them to output
signals which it then sends to output devices such as solenoids,
valves, etc. From the limited information available in the
protest file, we conclude the various control devices under
protest function precisely in this manner with their principal
purpose being to control all phases of the paper making and
finishing process. These devices are included in heading 8537.
HOLDING:
The protest is DENIED with respect to the temperature
measuring stations based on protestant's failure to comply with
the requirements of 19 CFR 174.13(a)(6). Under the authority of
GRI 1, the various logic cabinets, control panels, junction boxes
and equipment cabinets are provided for in heading 8537. They
are classifiable in subheading 8537.10.90, HTSUS, as liquidated.
The protest is DENIED as to this merchandise as well.
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
Commercial Rulings Division