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HQ 956944




NOVEMBER 23, 1944

CLA-2:CO:R:C:M 956944 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8537.10.90

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

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


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