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HQ 961501





July 17, 1998

CLA-2 RR:CR:GC 961501 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9010.50.40

Port Director of Customs
Building #77
Jamaica, NY 11430

RE: Protest 1001-97-105261; Laser Film Subtitling Machine

Dear Port Director:

The following is our decision regarding Protest 1001-97-105261 concerning your action in classifying and assessing duty on a laser film subtitling machine under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of a laser film subtitling machine, the purpose of which is to engrave subtitles onto cinematographic film. According to the protestant, this process is performed by means of a moving laser beam focussed on the film. The energy of the laser vaporizes the gelatine coating on the film, leaving behind the transparent support. The displacement of the laser beam is achieved by driving two scanners simultaneously, by means of an acousto-optic modulation system, mounted to each other at a 90 degree angle. Each subtitle is engraved on a frame by frame basis, the number of frames to be engraved per subtitle dependent upon the length of the subtitle. All engraving data (i.e., subtitle text, subtitle duration) is contained on subtitling diskettes, which are not imported with the subject machine and are therefore not part of this protest. Film transport is performed by a film advance mechanism and a film wind-off/wind-on unit.

The merchandise was entered on February 12, 1997, under subheading 8456.10.50, HTSUS (the 1996 predecessor to 1997 subheading 8456.10.60, HTSUS), as an other machine tool for working any material by removal of material, operated by laser. The entry was liquidated on May 30, 1997, under subheading 9010.50.40, HTSUS, as other equipment for photographic (including cinematographic) laboratories. The protest was timely filed on August 1, 1997.

ISSUE:

Whether the laser film subtitling machine is classifiable under subheading 8456.10.60, HTSUS, as an other machine tool for working any material by removal of material, operated by laser, or under subheading 9010.50.40, HTSUS, as other equipment for photographic (including cinematographic) laboratories.

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 1997 HTSUS provisions under consideration are as follows:

8456 Machine tools for working any material by removal of material, by laser or other light or photon beam, ultrasonic, electro-discharge, electro-chemical, electron- beam, ionic-beam or plasma arc processes:

8456.10 Operated by laser or other light or photon beam processes:

8456.10.60 Other.

9010 Apparatus and equipment for photographic (including cinematographic) laboratories (including apparatus for the projection or drawing of circuit patterns on sensitized semiconductor materials), not specified or included elsewhere in this chapter; negatoscopes; projection screens; parts and accessories thereof:

9010.50 Other apparatus and equipment for photographic (including cinematographic) laboratories; negatoscopes:

Photographic film viewers, titlers, splicers and editors, all the foregoing and combinations thereof:

Articles containing an optical lens or designed to contain such a lens:

9010.50.40 Other.

As your office claims that the subject machine is classifiable in heading 9010, HTSUS, we must determine whether it is so described. 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). Explanatory Note 9010(I)(IJ)(13) (pp. 1594 - 1595) states:

(I) APPARATUS AND EQUIPMENT FOR PHOTOGRAPHIC (INCLUDING CINEMATOGRAPHIC) LABORATORIES (INCLUDING APPARATUS FOR THE PROJECTION OR DRAWING OF CIRCUIT PATTERNS ON SENSITIZED SEMICONDUCTOR MATERIALS), NOT SPECIFIED OR INCLUDED ELSEWHERE IN THIS CHAPTER

This group includes:

(IJ) Specialised machines and apparatus used in cinematographic laboratories, such as:

(13) Film titling apparatus.

As it is our understanding that the purpose of the subject machine is to engrave subtitles onto cinematographic film, we find that the machine is of the class or kind of merchandise described as "specialised machines and apparatus used in cinematographic laboratories" covered by heading 9010, HTSUS. In fact, film titling machines are specifically mentioned in both Explanatory Note 90.10 and the subheading provisions of heading 9010, HTSUS. Although the protestant claims that the merchandise is classifiable in heading 8456, HTSUS, no arguments or evidence has been provided precluding the machine from classification in heading 9010, HTSUS. Consequently, it is our position that the laser film subtitling machine is classifiable in heading 9010, HTSUS, specifically under subheading 9010.50.40, HTSUS.

As previously stated, the protestant claims classification of the merchandise in heading 8456, HTSUS. Section XVI, note 1(m), HTSUS, states:

1. This section does not cover:

(m) Articles of chapter 90.

Because the merchandise is a good of chapter 90, HTSUS, in accordance with section XVI, note 1(m), HTSUS, it is precluded from classification in heading 8456, HTSUS.

HOLDING:

The laser film subtitling machine is classifiable under subheading 9010.50.40, HTSUS, as other equipment for photographic (including cinematographic) laboratories.

You should DENY the protest 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 this 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
Commercial Rulings Division

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