HQ 953430: 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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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