HQ 956944

NOVEMBER 23, 1994

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

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