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HQ 958728




June 7, 1996

CLA-2 RR:TC:MM 958728 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8537.10.90; 8538.90.20

Port Director
U.S. Customs Service
P.O. Box 789
Great Falls, Montana 59403

RE: Protest 3304-95-100055; Remote terminal unit components; relay panels; circuit board assemblies; section XVI, note 1(m); chapter 90, note 6; 19 CFR ?174.13; uniform and established practice

Dear Port Director:

The following is our decision regarding Protest 3304-95-100055, which concerns the classification of components for remote terminal units under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered between March 28, 1994, through May 1, 1995, and the entries were liquidated on various, though unlisted (on the Customs Form 19), dates. The protest was filed on October 30, 1995.

FACTS:

The subject merchandise is described as follows: "Western D20 K12 relay panels" and "D20 Configuration (Circuits Boards for remote terminal units)." The relay panels and circuit board assemblies are components of a distributed remote terminal unit (RTU) known as the "WESDAC D20 Substation System." The system is generally used by power utility companies to provide "supervisory control and data acquisition" (it is often referred to as "SCADA" equipment). The system, which is at the same location as the particular utility (i.e., a dam), relays data to and from the master station, which is at another location. The data generally concerns power surges, faults, lack of power, etc. - 2 -

The relay panels and circuit boards include the D20M Main Processor, D20A Analog Inputs, D20K Control Outputs, D20S Status Inputs and D20C Combination I/O boards. The D20M is the main processor for the RTU and peripheral modules. It handles data collection and delivery to the host, runs local automation algorithms and maintains I/O data in the RTU database. The D20A continuously scans all 32 inputs, while the D20K offers several hardware/software control configurations, including Trip/Close, Raise/Lower, Form C contact and solid-state open drain outputs. The D20S accepts 64 optically isolated inputs in eight groups. Each input can be configured from a downloaded database to be a status point, binary coded decimal, sequence of event or pulse accumulator. The D20C is ideal for small point count applications. It combines the features of the D20A, D20K and D20S to provide 16 status inputs, eight momentary or dual control outputs and an optional eight analog inputs/outputs or 16 analog inputs.

The articles in question were entered under subheading 9032.90.60, HTSUS, which provides for other parts for automatic regulating or controlling instruments and apparatus (see subheading 9905.90.25, HTSUS, which provides for parts and accessories of electronic logic panels for multi-zone controls, automatic regulation or control instruments, and fan and humidity controls of subheading 9032.89.60 (provided for in subheading 9032.90.60), HTSUS). The relay panels were classified upon liquidation under subheading 8537.10.90, HTSUS, which provides for other bases for electric control or the distribution of electricity, while the circuit boards were classified under subheading 8538.90.20, HTSUS, which provides for other parts suitable for use solely or principally with the apparatus of heading 8537, HTSUS.

ISSUE:

1. Whether there is a uniform and established practice of classifying the relay panels and circuit boards for the WESDAC D20 Substation System as parts for automatic regulating or controlling instruments and apparatus under subheading 9032.90.60, HTSUS.

2. Whether the relay panels and circuit boards are classifiable under heading 9032, HTSUS, or as bases for electric control or the distribution of electricity under heading 8537, HTSUS, and parts suitable for use solely or principally with this apparatus under heading 8538, HTSUS.

LAW AND ANALYSIS:

1. Uniform and Established Practice

The protestant contends that a uniform and established practice exists with respect to the liquidation of the relay panels and circuit boards under subheading 9032.90.60, HTSUS, which provides for parts for automatic regulating or controlling instruments. This claim is based on a total of six entries (two at Sweetgrass, Montana, three at Cleveland, Ohio, and one at Romulus, Michigan) that were liquidated as entered under this subheading between July 30, 1993, and May 13, 1994.

It is our opinion that, by merely relying on the treatment of six entries by one importer at three separate ports, the protestant has not established the existence of a uniform and established practice. In fact, more substantial treatments of entries have not resulted in the finding of uniform and established practices. See, e.g., Kalan Inc. v. United States, 12 C.I.T. 1142 (1988) (nine liquidations over a one-year period); United States v. H. Reeve Angel & Co., Inc., 33 CCPA 114 (1946) (two importers' entries at two ports); Siemens America, Inc., et al. v. United States, 2 CIT 136, aff'd. 692 F. 2d 1382 (1981) (a classification ruling letter and 100 subsequent entries); Washington Handle Co. v. United States, 34 CCPA 80 (1946) (28 shipments at two ports).

2. Classification

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, 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 (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The headings under consideration are as follows:

8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more - 4 -
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

8538 Parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537

9032 Automatic regulating or controlling instruments and apparatus . . .

The protestant contends that the WESDAC D20 Substation System, and the relay panels and circuit boards, as parts, are classifiable under heading 9032, HTSUS. Regarding the classification of the WESDAC system, note 1(m) to section XVI, HTSUS, states that the section, which includes chapters 84 and 85, does not cover articles of chapter 90. Thus, if the system is classifiable under heading 9032, HTSUS, it cannot be classified under headings 8537, HTSUS.

Note 6 to chapter 90, HTSUS, provides that heading 9032, HTSUS, applies only to the following:

(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 operating depends on an electrical phenomenon which varies according to the factor to be automatically controlled; and
(b) Automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled.

There is no indication in the file to conclude that the WESDAC system automatically controls the flow, level, etc., of liquids or gases, temperature or non-electrical quantities, or automatically regulates electrical quantities. The system is generally used by power utility companies to provide "supervisory control and data acquisition." The system, which is at the same location as the particular utility (i.e., a dam), relays data concerning power surges, faults, lack of power, etc., to and from - 5 -
the master station, which is at another location. While the system can, for example, shut off the system in the event of a power failure, it is not classifiable under heading 9032, HTSUS. Because the system cannot be classified under heading 9032, HTSUS, the relay panels and circuit boards cannot be classified, as parts, under subheading 9032.90.60, HTSUS.

While it appears that the relay panels and circuit boards are classifiable within heading 8537, HTSUS (or, if parts, heading 8538, HTSUS), there is not enough information to render a definitive classification opinion. The file does not contain "[a] specific description of the merchandise affected by the decision as to which protest is made," or, beyond the uniform and established practice claim, "[t]he nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal." See 19 CFR ?174.13(5)(6) (regarding "contents of protest").

HOLDING:

The relay panels are classifiable under subheading 8537.10.90, HTSUS, while the circuit boards are classifiable under subheading 8538.90.20, HTSUS.

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 the 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.

Sincerely,

John Durant, Director

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