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HQ H008631
March 11, 2010
CLA-2 OT:RR:CTF:TCM H008631 JER
CATEGORY: Classification
TARIFF NO.: 8537.10.90
Port Director Port of Champlain U.S. Customs and Border Protection 237 West Service Rd.
Champlain, NY 12919
RE: Application for Further Review of Protest No. 0712-07-100022; Process Control System
Dear Port Director:
This is our decision regarding the Application for Further Review of Protest No. 0712-07-100022,
timely filed on behalf of Invensys Systems Canada, Inc. ("Invensys") on January 23, 2007, concerning
the classification of a Process Control System under the Harmonized Tariff Schedule of the United
States ("HTSUS"). For the reasons discussed below, we find the classifications provided by the Port to
be correct. In reaching our decision, additional consideration has been given to the supplemental
submission provided by Invensys on December 14, 2009.
FACTS:
The subject merchandise is a Process Control System designed to control the production, distribution
and transmission of electricity in an electrical power plant. Protestants submission states that the
instant "merchandise was sold to Florida Power and Light and was designed to control the production
and transmission of electricity over a wide area." The system is further described as intelligent
automation for power substations which monitors and controls the flow of electricity through a high
voltage substation, switching power loads as needed, which sustains a continuous flow of electricity
and averts blackouts. According to the information provided, the system measures numerous variables
at the same time in order to make a determination of what action needs to be taken by the operating
devices.
The system is capable of switching loads to and from various feeders for line maintenance and
providing continuous power. The submission also states that "the system provides for auto-reclose,
synchronizing checks, control interlocking, switching automation sequences[and] include automatic
voltage regulation by way of a transformer control, power factor corrections via capacitor banks and
reactor controls, load and shed restoration."
According to the supplemental submission, a detailed description of each component is summarized as
follows: Field Control Processors execute algorithms, act as communication control devices which
read and write data to and from field devices and the system network. Analog Input components read
analog signals from generation plant process instrumentation. Thermocouple Analog Input
components read analog signals from generation plant process Thermocouple temperature
measurement devices. Digital Input/Output components read digital signals from generation plant
process triggering sources. Serial Communication components communicate with generation plant
instrumentation. Workstations provide graphic displays showing Filed Control Processor information
and display alarms and historic trends. Server ADPs support operation of application software
processes.
The supplemental submission further explains that "[t]his equipment is used in a generation plant
process application, prior to the electrical grid boundary." The system does not include electrical
transmission or distribution components and does not produce, distribute or transmit electricity
throughout the power substation. It is process control equipment and apparatus, used to control parts of
a power plant.
The Process Control System was entered under subheading 9032.89.60, HTSUS, as process control

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instruments and apparatus, complete systems. You reclassified the merchandise under subheading
8537.10.90, HTSUS, which provides, in relevant part, for "Boards, panels, consolesand other bases,
equipped with two or more apparatus of heading 8535 or 8536, for electric control or distribution of
electricity, including those incorporating instruments or apparatus of chapter 90Other:
Programmable controllers."
ISSUE:
Whether the subject merchandise is classifiable as an automatic process control instrument or
apparatus in heading 9032, HTSUS, or as a Programmable controller, incorporating an apparatus of
Ch. 90 for the control and distribution of electricity in heading 8537, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on
classification. The protest was timely filed, within 180 days of liquidation. (Miscellaneous Trade and
Technical Corrections Act of 2004, Pub.L. 108-429, 2103(2)(B)(ii), (iii) (codified as amended at 19
U.S.C. 1514(c)(3) (2006)).
Further Review of Protest No. 0712-07-100022 was properly accorded to protestant pursuant to 19
C.F.R. 174.24 (a) because the decision against which the protest was filed involves or is alleged to be
inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at
any port with respect to substantially similar merchandise. Specifically, Protestant cites New York
Ruling Letter ("NY") 865530 dated August 20, 1991 and Headquarters Ruling Letter ("HQ") 960259
dated November 12, 1997.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation
(GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of
the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods
cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise
require, the remaining GRIs 2 through 6 may then be applied in order.
The 2006 HTSUS provisions under consideration are as follows:
8537
Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more
apparatus of heading 8535 or 8536, for electric control or distribution of electricity, including those
incorporating instruments or apparatus of chapter 90, and numerical control apparatus, other than
switching apparatus of heading 8517:
8537.10
For a voltage not exceeding 1,000 V: 8537.10.90
Other Other:
8537.10.9060
Programmable controllers
9032 Automatic regulating or controlling instruments and apparatus; parts and accessories thereof:
Other instruments and apparatus:
9032.89

Other:

9032.89.60

Other.....

Process control instruments and apparatus:

9032.89.6030
*

Complete systems.....

* Note 7 to Chapter 90, HTSUS, provides, relevant part, that:

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Heading 9032 applies only to:

* * * (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, which are designed to bring this factor
to, and maintain it at, a desired value, stabilized against disturbances, by constantly or periodically
measuring its actual value.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the
official interpretation of the Harmonized System at the international level. While not legally binding
nor dispositive, the ENs 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
(August 23, 1989).
Note 7(b) to Ch. 90, pertains, in relevant part, to automatic regulators of electrical quantities. EN
90.32(II) explains, in relevant part:
The automatic regulators of this heading are intended for use in complete automatic control systems
which are designed to bring a quantity, electrical or non-electrical to, and maintain is at, a desired
value, stabilised against any disturbances, by constantly or periodically measuring its actual value.
They consist essentially of the following devices:
(A) A measuring device ... which determines the actual value of the variable to be controlled and
converts it into a proportional electrical signal.
(B) An electrical control device which compares the measured value with the desired value and gives a
signal (generally in the form of a modulated current).
(C) A starting, stopping or operating device (generally, contacts, switches or circuit breakers, reversing
switches or, sometimes, relay switches) which supplies current to an actuator in accordance with the
signal received from the control device.
An automatic regulator within the meaning of Note 7(b) to this Chapter consists of the devices
described in (A), (B) and (C) above, whether assembled together as a single entity or in accordance
with Note 3 to this Chapter, a functional unit. EN 90.32 provides, in pertinent part that:
This heading also excludes:
*

* (b) "Programmable controllers" of heading 85.37.

EN 85.37 provides, in pertinent part, that: The heading also covers:

(1)
Numerical control panels with built in automatic data processing machine, which are generally
used to control machine tools.
(2)
Programmed switchboards to control apparatus; these permit variations in the choice of
operations to be followed. They are normally used in domestic electrical appliances, such as washing
machines and dish washers. (3)
"Programmable controllers " which 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 digital or analog input/output

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modules, various types of machines

* * * Invensys argues that the subject Process Control System is classifiable under heading 9032,
HTSUS, as a "process control instrument and apparatus, complete system" because the subject
merchandise "measures variables and analyze[s] this data in order to issue instructions on actions to be
taken." Invensys also states that "Customs determination that a system under [heading] 9032 lacks
logic where a system under [heading] 8537 uses logic is misplaced." Invensys further asserts that
"[s]ystems under [heading] 8537 are boards, panelsfor electrical control or distribution of electricity
including those incorporating instruments and apparatus of Chapter 90."
First, we consider whether the subject merchandise is described by heading 9032, HTSUS. Based on
the information provided, we note that the subject Process Control System measures numerous
variables simultaneously in order to make a determination of what action needs to be taken by the
operating devices. Likewise, the system is capable of switching loads to and from various feeders for
line maintenance and the continuous flow of electricity and monitors and controls the flow of
electricity while averting blackouts. However, the subject merchandise does not bring the fluctuation
of electricity in measured quantity back to a desired value. Nor does it maintain the fluctuation,
distribution or transmission at a predetermined or desired value against disturbances. Such, are
requisite functions of Note 7 (b) to Ch.90, HTSUS.
Further, the subject Process Control System consists of several components which perform functions
which are beyond those described in heading 9032, HTSUS, and Note 7(b) to Chapter 90, HTSUS.
Specifically, programmed functions such as auto-reclose, synchronizing checks, control interlocking
and switching automation sequences, are all functions which are not described by the terms of heading
9032, HTSUS or Note 7(b) to Chapter 90, HTSUS.
Similarly, the subject control process system consists of both analog and digital input/output modules
which are explicitly described in the EN 85.37, HTSUS, rather than heading 9032, HTSUS. The
Digital Output (Part No. P0916TA) is a module that signals actuation devices. Actuation devices
electrically operate contacts to open or close an electrical circuit, such as a relay or contactor which is
an electrical control function within the meaning of heading 8537, HTSUS. Furthermore, the Power
Supply (Part No. P0917LY) "provides low-voltage (24V) power to Field Control Processors (FCP) and
Fieldbus Modules (FBM)" which are electrical distribution functions described by the terms of heading
8537, HTSUS. Based on the functions performed by the aforementioned components of the subject
merchandise, we find that the subject Invensys System process performs functions which are beyond
the scope of heading 9032, HTSUS.
CBP has previously held that control equipment and apparatus which function to control machinery,
apparatus or equipment, are classifiable in heading 8537, HTSUS. See, e.g., HQ 085281, dated
November 8, 1989 (Wherein CBP classified an optimizer system under heading 8537, HTSUS, in
which dimensions of logs and boards are digitally input to a process controller which makes necessary
calculations for optimal method to cut logs, and then instructs the saws how to slice the logs); see also,
HQ 950120, dated May 13, 1992 (In which a laser vision system in which controller directs
servomotors to move welding apparatus was classified in heading 8537, HTSUS); and NY H82946,
dated July 25, 2001 (In which CBP classified a process control system which allowed a cement truck
driver to make selections on a self-service loading kiosk, which interfaces with a controller, resulting
in the automatic loading of cement into the truck, in heading 8537, HTSUS). In HQ 967519, dated
July 11, 2006, CBP classified in heading 8537, HTSUS, an Ethernet-based system, which received
information from industrial plant process control instruments about the instruments readings of
specified conditions, and communicated to those instruments information about how they should
adjust the functions they perform to enable the industrial plant to operate and function properly.
The subject Process Control System is no different. The instant merchandise uses an electrical
programmable controller to provide intelligent automation for power substations. The system monitors
components in an industrial/manufacturing plant through process control instruments to enable the
plant to operate and function more efficiently. Moreover, the subject merchandise is a programmable

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controller which incorporates apparatus of heading 9032 for automatic voltage regulation by way of a
transformer control unit. As the submission attests, the subject merchandise "utilizes numerous
functional capabilities, checks or measures quantitiesand analyzes this information and provides
instructions to alter the operation to change the environment, resulting in a change to the material
being processed."
As the ENs to heading 8537, HTSUS, explain, articles of this heading consist of an assembly of
apparatus from small switchboards to complex control boards or panels which usually also incorporate
meters, transformers and voltage regulators. The ENs to heading 8537, HTSUS, further explain that
the heading covers "programmable controllers" which use programmable memory for the storage of
instructions for implementing logic, to control various types of machines and which control apparatus
according to the users instructions. Accordingly, we find that the primary function of the subject
merchandise is automatically analyzing and controlling the production and transmission of electricity
and thereby changing the various measured factors according to the demands of the programming.
Finally, merchandise which is described by heading 8537, HTSUS, yet incorporates instruments or
apparatus described Chapter 90, HTSUS, remains classified in heading 8537, HTSUS, pursuant to the
terms of the heading, which provides, in pertinent part, for: "[b]oards, panelsfor electrical control or
distribution of electricity, including those incorporating instruments or apparatus of chapter 90" As
such, we find that the subject merchandise is classifiable under heading 8537, HTSUS. HOLDING:
By application of GRI 1 the subject Process Control System is classified in heading 8537, HTSUS.
The merchandise is specifically classified in subheading 8537.10.9060, HTSUSA, which provides for:
"Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of
heading 8535 or 8536, for electric control or distribution of electricity, including those incorporating
instruments or apparatus of chapter 90, and numerical control apparatus, other than switching
apparatus of heading 8517: For a voltage not exceeding 1,000 V: Other: Other: Programmable
controllers." The 2006 column one, general rate of duty was 2.7% ad valorem.
Since the rate of duty under the classification indicated is the same as the liquidated rate, you are
instructed to deny the protest in full. In accordance with the Protest/Petition Processing Handbook (HB
3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form
19, 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.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and
Rulings will make the decision available to CBP personnel, and to the public on the CBP homepage on
the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other
methods of public distribution.
Sincerely,
Myles B. Harmon, Director Commercial and Trade Facilitation Division

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