CLA-2 RR:CR:GC 960259 DWS
Mr. Paul S. Anderson
Sonnenberg & Anderson
200 South Wacker Drive
Chicago, IL 60606
RE: Reconsideration of NY A88137; Gob Image Analyzing System; Gob
Image
Analyzer; Gob Weight Controller; Chapter 90, Note 6(a);
Explanatory Note
90.32; Chapter 90, Note 3; Section XVI, Notes 1(m) and 4;
Chapter 85, Note 6;
HQ 956962; 8501; 8423.30.00; 9031.49.90
Dear Mr. Anderson:
This is in response to your letters of February 19 and
September 2, 1997, on behalf of GeDevelop, Inc., requesting
reconsideration of NY A88137, dated October 24, 1996, concerning
the classification of a Gob Image Analyzing System under the
Harmonized Tariff Schedule of the United States (HTSUS).
Pursuant to 625(c)(1), Tariff Act of 1930 [19 U.S.C.
1625(c)(1)], as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub.L. 103-82, 107 Stat. 2057, 2186 (1993),
notice of the proposed revocation of NY A88137 was published on
October 1, 1997, in the CUSTOMS BULLETIN, Volume 31, Number 40.
No comments were received in response to the notice.
FACTS:
The merchandise consists of a Gob Image Analyzing System
(GIA System), which is composed of a Gob Image Analyzer (GIA) and
a Gob Weight Controller (GWC). You claim that the primary
function of the GIA System is to monitor and control the flow of
molten glass to ensure that the optimal amount of molten glass is
poured into a mold which will shape the end product.
A gob is a small amount of molten glass which is allowed to
fall from the hearth to the molding machine which will shape the
molten glass into a container. A flow of molten glass travels
through a tube connected to the hearth. Gobs are formed by
intermittently stopping the flow of molten glass. In the
production of glass containers, the desired weight and shape of
the gobs varies depending upon the desired end product. The
weight of a gob directly relates to the flow of the molten glass
through the tube. The flow of the molten glass is controlled by
moving the tube through which it flows.
The GIA System measures the temperature, width, and speed of
the gob as it is falling. From this data, it calculates the
gob's weight and shape. The GIA System will then compare the
gob's weight, shape, and temperature to prescribed parameters.
If a gob's weight falls outside prescribed parameters, the GIA
System will alter the flow of the molten glass by adjusting the
tube height. This will, in turn, affect the weight of subsequent
gobs. If a gob's shape or temperature falls outside prescribed
parameters, the GIA System will notify the operator of the
discrepancy by means of an audible or visual alarm.
The GIA consists of four main components: a camera
consisting of sensors with a charge-coupled device (CCD) array
housed in an aluminum case; a computer dedicated for use in the
GIA System which includes a central processing unit (CPU),
software, system disk, disk drive, monitor, and keyboard; a scale
used to calibrate the GIA; and a gob-shape-change switch. The
camera consists of a series of sensors capable of detecting the
radiation emitted by a gob of molten glass. As the gob falls, it
passes in front of the sensors. The light emitted from the hot
piece of molten glass will illuminate part of the CCD array equal
in size to the width of the falling gob. The sensors will also
determine the speed of the falling gob as it enters and exits the
path of the sensors. This information is converted into
electronic data transmitted by cable to the computer. From this
data, the computer will calculate the gob's weight. A pictorial
representation of the falling gob, based on the data collected by
the sensors, will be shown on the computer's color monitor. This
information will be stored on the computer's system disk and may
be sent to the customer's main process control system to log and
print the information. The GIA will then compare the
characteristics of the falling gob to prescribed parameters. As
the prescribed parameters depend upon the container being
manufactured, they may be adjusted using the gob-shape-change
switch.
The GIA also incorporates an optical pyrometer which
measures the temperature of the falling gob. You state that the
temperature of the falling gob is not a characteristic controlled
in the manufacturing process, but is of interest to the
engineers.
If the GIA discovers that the gob weight is not within the
prescribed parameters, a signal will be sent to the GWC. The GWC
will then adjust the tube height accordingly to adjust the flow
of the molten glass through the tube thereby changing the gob
weight. The GWC performs this function utilizing a motor which
is not a part of the GIA System.
You request that we determine the correct classification of
the GIA System, and the classification of the GIA and GWC as if
they were imported separately. The holding in NY A88137 did not
address the latter issue.
ISSUE:
Whether the GIA System is a functional unit classifiable
under subheading 8423.30.00, HTSUS, as a scale for discharging a
predetermined weight of material into a bag or container,
including hopper scales, under subheading 9031.49.90, HTSUS, as
an other optical measuring or checking instrument or appliance,
or under subheading 9032.89.60, HTSUS, as an other automatic
regulating or controlling instrument or apparatus.
Whether the GIA is a functional unit classifiable under
subheading 8423.30.00, HTSUS, as a scale for discharging a
predetermined weight of material into a bag or container,
including hopper scales, or under subheading 9026.80.60, HTSUS,
as an other instrument or apparatus for measuring or checking the
flow, level, pressure, or other variables of liquids or gases.
Whether pre-installed software in the computer of the GIA
and GIA System is separately classifiable under subheading
8524.99.90, HTSUS, as other recorded media for sound or other
similarly recorded phenomena.
Whether the GWC is classifiable under subheading 8537.10.90,
HTSUS, as an other board, panel, etc., for electric control of
electricity.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's). GRI
1 provides that classification is determined according to the
terms of the headings and any relative section or chapter notes.
The subheadings under consideration are as follows:
8423.30.00: [w]eighing machinery (excluding balances of a
sensitivity of 5 cg
or better), including weight-operated
counting or checking
machines; weighing machine weights of all
kinds; parts of
weighing machinery: constant-weight scales
and scales for
discharging a predetermined weight of
material into a bag or
container, including hopper scales.
The general, column one rate of duty for goods classifiable
under this provision
is 1.8 percent ad valorem.
8524.99.90: [r]ecords, tapes and other recorded media for
sound or other
similarly recorded phenomena, including
matrices and masters for
the production of records, but excluding
products of chapter 37:
[o]ther: [o]ther: [o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 3.9 cents per meter squared of recording surface.
8537.10.90: [b]oards, 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, and
numerical control apparatus, other than
switching apparatus of
heading 8517: [f]or a voltage not exceeding
1,000 V: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 3.7 percent ad valorem.
9026.80.60: [i]nstruments and apparatus for measuring or
checking the flow,
level, pressure or other variables of liquids
or gases (for example,
flow meters, level gauges, manometers, heat
meters), excluding
instruments and apparatus of heading 9014,
9015, 9028, or 9032;
parts and accessories thereof: [o]ther
instruments and apparatus:
[o]ther: [o]ther.
Goods classifiable in this provision receive duty-free
treatment.
9031.49.90: [m]easuring or checking instruments, appliances
and machines, not
not specified or included elsewhere in this
chapter; profile
projectors; parts and accessories thereof:
[o]ther optical
instruments and appliances: [o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 6.1 percent ad valorem.
9032.89.60: [a]utomatic regulating or controlling
instruments and apparatus;
parts and accessories thereof: [o]ther
instruments and apparatus:
[o]ther: [o]ther.
The general, column one rate of duty for goods classifiable
under this provision
is 3 percent ad valorem.
We will first deal with the classification of the entire GIA
System under the HTSUS. In NY A88137, Customs held the GIA
System to be classifiable under subheading 9031.49.80, HTSUS
(precursor to 1997 subheading 9031.49.90, HTSUS). You contend
that the GIA System is classifiable as a functional unit under
subheading 9032.89.60, HTSUS. Because heading 9031, HTSUS,
excludes goods specified or included elsewhere in chapter 90,
HTSUS, we must determine whether the GIA System is described
under heading 9032, HTSUS.
Chapter 90, note 6(a), HTSUS, states that:
[h]eading 9032 applies only to:
(a) Instruments and apparatus for automatically controlling
the flow, level,
pressure or other variables of liquids or gases, or
for automatically
controlling temperature, whether or not their
operation depends on an
electrical phenomenon which varies according to the
factor to be
automatically controlled.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive or
legally binding, 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 Fed. Reg.
35127, 35128 (August 23, 1989). In part, Explanatory Note
90.32(I) (p. 1659) states:
(I) INSTRUMENTS AND APPARATUS FOR AUTOMATICALLY CONTROLLING
THE FLOW, LEVEL, PRESSURE OR OTHER VARIABLES OF LIQUIDS OR
GASES, OR FOR AUTOMATICALLY CONTROLLING TEMPERATURE
Automatic control apparatus for liquids or gases and
apparatus for
automatically controlling temperature form part of complete
automatic control
systems and consist essentially of the following devices:
(A) A device for measuring the variable to be controlled
(pressure or level in a
tank, temperature in a room, etc.); in some cases, a
simple device which is
sensitive to changes in the variable (metal or bi-metal rod, chamber or
bellows containing an expanding liquid, float, etc.)
may be used instead of a
measuring device.
(B) A control device which compares the measured value with
the desired
value and actuates the device described in (C) below
accordingly.
(C) A starting, stopping or operating device.
Apparatus for automatically controlling liquids or
gases or temperature,
within the meaning of Note 6(a) to this Chapter, consists of
these three devices
forming a single entity or in accordance with Note 3 to this
Chapter, a
functional unit. . .
Instruments and apparatus for automatically controlling
the flow, level, pressure and other variables of liquids or
gases or for automatically controlling
temperature are connected to an appliance which carries out
the orders (pump,
compressor, valve, furnace burner, etc.) which restores the
variable (e.g., liquid
measured in a tank or temperature measured in a room) to the
prescribed value,
or which, in the case of a safety system, for instance,
stops the operation of the
machine or apparatus controlled. This appliance, generally
remote controlled by
a mechanical, hydraulic, pneumatic or electric control is to
be classified in its own appropriate heading (pump or
compressor: heading 84.13 or 84.14; valve:
heading 84.81, etc.). . .
Chapter 90, note 3, HTSUS, states that:
[t]he provisions of note 4 to section XVI apply also to this
chapter.
Section XVI, note 4, HTSUS, states that:
[w]here a machine (including a combination of machines)
consists of individual
components (whether separate or interconnected by piping, by
transmission
devices, by electric cables or by other devices) intended to
contribute together
to a clearly defined function covered by one of the headings
in chapter 84 or
chapter 85, then the whole falls to be classified in the
heading appropriate to that function.
The GIA and the GWC, imported together as a unit, function
together to meet the terms of Explanatory 90.32. The GIA acts
both as a measuring device in that it measures the flow of molten
glass (liquid) by calculating the weight of a falling gob of
molten glass, and as a control device in that it compares the
weight of the falling gob against prescribed parameters and
transmits a signal to the GWC if adjustments need to made. The
GWC acts as an operating device in that it adjusts the height of
the tube through which the molten glass is flowing utilizing a
motor. As stated in Explanatory Note 90.32, the motor (an
"appliance which carries out the orders") is not a part of the
GIA System and is separately classifiable under heading 8501,
HTSUS.
The GIA System consists of individual components (GIA and
GWC) intended to contribute together to a clearly defined
function (automatically controlling the flow, weight, shape and
temperature of liquids) covered by heading 9032, HTSUS.
Therefore, the GIA System is functional unit described under
subheading 9032.89.60, HTSUS, and it is precluded from
classification under subheading 9031.49.90, HTSUS.
It has been suggested that the GIA System is a functional
unit described under subheading 8423.30.00, HTSUS. Although the
GIA does incorporate a scale and part of the function of the GIA
is to calculate the weight of a gob, we find that function of the
GIA as a whole is not encompassed by heading 8423, HTSUS. It is
stated in the supplied literature that the GIA monitors
temperature, shape, and weight, and it is our understanding that
all three factors must meet certain specification requirements
for each different end product. Also, to be classifiable under
subheading 8423.30.00, HTSUS, the predetermined weight of
material must be discharged in a bag or container. It is our
position that, in this case, a mold is not a container for
heading 8423, HTSUS, purposes, and we note that none of the
containers involved in any Customs ruling concerning subheading
8423.30.00, HTSUS, is similar to a mold.
Section XVI, note 1(m), HTSUS, states that:
[t]his section does not cover:
(a) - (ij) xxx
(m) Articles of chapter 90.
Even if the GIA System were described under heading 8423,
HTSUS, because it is an article of chapter 90, HTSUS, it would be
precluded from classification in chapter 84, HTSUS.
We will now determine the classification of the GIA imported
separately. Because the principal function of the GIA is to
monitor and control the flow of molten glass, it is our position
that it consists of individual components (CCD camera, computer,
scale, gob-shape-change switch, and optical pyrometer) intended
to contribute to a clearly defined function covered by heading
9026 (measuring or checking the flow, weight, shape, and
temperature of liquids), HTSUS.
For the same reasons as with the GIA System, the GIA is
precluded from classification under heading 8423, HTSUS.
Therefore, the GIA, when imported separately, meets the terms of
heading 9026, HTSUS, and is classifiable under subheading
9026.80.60, HTSUS.
Chapter 85, note 6, HTSUS, states that:
[r]ecords, tapes and other media of heading 8523 or 8524
remain classified in
those headings, whether or not they are entered with the
apparatus for which
they are intended.
Therefore, any pre-installed software in the computer of the
GIA and GIA System is separately classifiable under subheading
8524.99.40, HTSUS. See HQ 956962, dated September 13, 1994.
As it is our understanding that the GWC functions as a
programmable controller, it is classifiable under subheading
8537.10.90, HTSUS.
HOLDING:
The Gob Image Analyzing System is a functional unit
classifiable under subheading 9032.89.60, HTSUS, as an other
automatic regulating or controlling instrument or apparatus.
When imported separately, the Gob Image Analyzer is a
functional unit classifiable under subheading 9026.80.60, HTSUS,
as an other instrument or apparatus for measuring or checking the
flow, level, pressure, or other variables of liquids or gases.
Any pre-installed software in the computer of the GIA and
GIA System is separately classifiable under subheading
8524.99.40, HTSUS, as other recorded media for sound or other
similarly recorded phenomena.
When imported separately, the Gob Weight Controller is
classifiable as a functional unit under subheading 8537.10.90,
HTSUS, as an other board, panel, etc., for electric control of
electricity.
NY A88137 is revoked. In accordance with 19 U.S.C.
1625(c)(1), this ruling will become effective 60 days after its
publication in the CUSTOMS BULLETIN. Publication of rulings or
decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a
change of practice or position in accordance with section 177.10(c)(1),
Customs regulations [19 CFR 177.10(c)(1)
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division