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HQ 953430




June 27, 1994

CLA-2 CO:R:C:M 953430 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9017.20.80

District Director
U.S. Customs Service
300 S. Ferry Street, Room 1001
Terminal Island, CA 90731

RE: Protest 2704-92-103393; Shimatronic Design System; Drawing Instrument; Chapter 90, Note 3; Section XVI, Notes 1(m) and 4; Explanatory Note 90.17; NY 848655; HQs 953922, 955426, 082127, 086126, and 086082; 8471.92.40

Dear District Director:

The following is our decision regarding Protest 2704-92- 103393 concerning your action in classifying and assessing duty on the Shimatronic Design System under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of the Shimatronic Design System (model no. SDS-480 SGX). In provided literature, the system is described as a high end creative design and retouching system used to handle intricate design work and prepare visual presentation material, such as conceptual drawings of new automobiles in various color schemes, or graphic slides for advertising design to be used for commercials, television, or movies.

The standard system hardware configuration includes a central processing unit (CPU), a display monitor, a digit pad, a command monitor, and a sub-keyboard and frame buffers. Functions of the system include the use of a "paint brush", graphics, headline fonts, color correction, color calibration, a stencil, cut outs, filters, image shape modification, and special effects. Two types of drawing methods are available for the user: a color image scanner for photographs, illustrations, etc., and a cordless digitizer pen for drawing on a tablet or directly on the monitor screen with the pencil, brush, marker, chalk, or other tool selected from the processor menu.

In an automotive industry application, the system is used for free hand conceptual illustrations to get the "look and feel" of a vehicle. It is claimed that none of this work is used in the actual engineering design process of an automobile. In a print design application, the system is used to take photographic images, and either cut, paste, and combine images, or clean images for use in advertising design. In a high definition television (HDTV) application, the system is used to composite different images together and create special effects by illustration.

The Shimatronic Design System was entered under subheading 8471.92.40, HTSUS, as a display unit. The entry was liquidated on May 22, 1992, under subheading 9017.20.80, HTSUS, as an other drawing instrument. The protest was timely filed on August 20, 1992.

The subheadings under consideration are as follows:

8471.92.40: [a]utomatic data processing machines and units thereof . . . : [o]ther: [i]nput or output units, whether or not entered with the rest of a system and whether or not containing storage units in the same housing: [o]ther: [d]isplay units: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 3.7 percent ad valorem.

9017.20.80: [o]ther drawing, marking-out or mathematical calculating instruments: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5.8 percent ad valorem.

ISSUE:

Whether the Shimatronic Design System is classifiable under subheading 8471.92.40, HTSUS, as a display unit, or under subheading 9017.20.80, HTSUS, as an other drawing instrument.

FACTS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

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.

In HQ 953922, dated November 17, 1993, the Video Painter was held to be classifiable under subheading 9017.20.80, HTSUS. The Video Painter is a sketching and drawing system which is attached to a television set or a video monitor using a cable included with the system. The system allows the user to create a wide variety of colorful images on a television or video monitor screen. The user creates images by utilizing a special pen on a drawing pad in the center of the system, and may select from 12 colors and 6 patterns. The Video Painter also incorporates a built-in art library which includes over 50 graphics.

In NY 848655, dated January 18, 1990, the Electronic Sketch Pad was held to be classifiable under subheading 9017.20.80, HTSUS. It consists of a sketch pad, a drawing pen, and a video cable, enabling a user to sketch pictures onto a television screen.

Although the subject design system is much more advanced than the Video Painter and the Electronic Sketch Pad, it is our position that the concepts among them are similar. It is claimed by the protestant that the system is used only for conceptual drawings and not for the drawing of objects to detailed engineering specifications. It is claimed that instruments used for conceptual drawings are not classifiable under subheading 9017.20.80, HTSUS. However, the Video Painter and the Electronic Sketch Pad were specifically created so that a user could create conceptual drawings by hand. Detailed engineering specifications are not contemplated when using these two devices.

We note that the design system utilizes a digitizer pen to create some of the conceptual drawings. We have held that digitizer pens are drawing instruments in themselves and are classifiable under subheading 9017.20.80, HTSUS. See HQ 955426, dated April 14, 1994, and HQ 082127, dated October 16, 1989.

Counsel for the protestant argues that none of the exemplars listed under Harmonized Commodity Description and Coding System (HCDCS) Explanatory Note 90.17 describe the subject design system. 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, are to be used to determine the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In listing the various exemplars of the merchandise classifiable under heading 9017, HTSUS, Explanatory Note 90.17 states that the articles classifiable under heading 9017, HTSUS, "include . . . " It is our position that the term "include" is not exhaustive, but is merely intended to demonstrate examples of the kind of merchandise classifiable under heading 9017, HTSUS. Therefore, because the Shimatronic Design System is not described in the exemplars to Explanatory Note 90.17 does not mean that it is precluded from classification under heading 9017, HTSUS.

The design system is also capable of retouching photographs and illustrations which have been scanned into the system. In HQ 086126, dated March 6, 1990, we held that the DISC Interactive Editing System was classifiable under heading 8471, HTSUS. The editing system was used to edit both computer generated and hand drawn designs of printed circuit boards. However, in HQ 086082, dated June 17, 1991, HQ 086126 was modified so that the DISC Interactive Editing System is now classifiable under subheading 9017.20.80, HTSUS.

Because the retouching of scanned photographs and illustrations by the subject design system is an editing function similar to that of the editing system in HQ 086126, it is our position that the retouching function is also described by heading 9017, HTSUS.

Therefore, because the design system is a functional unit with the clearly defined function of the system that of drawing, under chapter 90, note 3, HTSUS, it is our position that the design system is classifiable under subheading 9017.20.80, HTSUS.

Section XVI, note 1(m), HTSUS, states that:

[t]his section does not cover:

(m) Articles of chapter 90.

Consequently, because the design system is classifiable under heading 9017, HTSUS, it is precluded from classification under heading 8471, HTSUS.

HOLDING:

The Shimatronic Design System is classifiable under subheading 9017.20.80, HTSUS, as an other drawing instrument.

The protest should be DENIED in full. 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 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, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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