CLA-2:CO:R:C:M 950571 JAS
District Director of Customs
101 East Main St.
Norfolk, Va. 23510
RE: Thermal Breakout Machine; Propane/Natural Gas Cutting
Machine; 8419.89.50, 8464.90.00; PRD 1401-1-100132
Dear Sir:
This our decision on Application for Further Review of Protest No. 1401-1-100132, dated August 23, 1991, filed on behalf of the Glassline Corp., Perrysburg, Ohio.
FACTS:
The machine in issue, from Germany, is a thermal breakout machine. It is one component of a plant for making automotive glass. A diagonal cutter cuts large glass blanks into smaller blanks which move by conveyor to an automated cutting machine. This machine scores the glass in the shape required to fit a car window. The scored shapes then move to the thermal breakout machine where propane or natural gas torches are directed at the score causing excess glass to fall off. Rotating breakout bars operate separately from the thermal breakout machine to mechanically knock off any remaining excess glass.
You liquidated the entries under subheading 8419.89.50, Harmonized Tariff Schedule of the United States (HTSUS), other machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating. You note that heading 8464 covers the machine as well, but cite a Chapter 84 legal note that requires classification in heading 8419.
Protestant maintains that subheading 8464.90.00, HTSUS, other machine tools for cold working glass, represents the proper classification. The argument is that the thermal breakout machine is not provided for in heading 8419 because it does not - 2 -
"treat" the glass by heating it; rather, glass in the cold is heated only slightly in what protestant refers to as thermal shock, so that excess pieces can be knocked off in a separate mechanical process.
ISSUE:
Whether the machine in issue is described both in heading 8419 and in heading 8464; if so, which heading prevails.
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 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.
Subject to exceptions not relevant here, a machine or appliance which answers to a description in one or more of the headings 8401 to 8424 and at the same time to a description in one or more of the headings 8425 to 8480 is to be classified under the appropriate heading of the former group and not the latter. Chapter 84, Note 2, HTSUS. For the reasons that follow, we find that this note does not apply.
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.
Relevant ENs at p. 1173 indicate that heading 8419 covers, machinery and plant, generally industrial in nature, designed to subject solid materials to a heating process in order to cause a simple change of temperature or to cause a transformation of the materials resulting principally from the temperature change. The heading excludes machinery in which the heating, even if essential, is a secondary function designed to facilitate the main mechanical function of the machine. The thermal breakout machine conforms to the description in this note and therefore answers to the description in heading 8419. - 3 -
Other ENs at p. 1283 indicate that the category of machines of heading 8464 for cold working glass includes those that slightly heat the glass to facilitate certain processes. Such machines are said to work on glass that still retains the consistency of a hard material. Many of these glass working machines carry out operations similar to the sawing, splitting or cleaving, and cutting machines of heading 8464 for working stone and like mineral materials. The heating function, in such cases, can be said to be subsidiary to whatever mechanical function the machine performs. The only function of the machine in issue here is thermal. It performs no mechanical function at all. We conclude, therefore, that heading 8464 does not encompass the thermal breakout machine.
HOLDING:
Because the thermal breakout machine is provided for in heading 8419 but not in heading 8464, Chapter 84, Note 2, HTSUS, does not apply.
Under the authority of GRI 1, the machine is provided for in heading 8419. Actual classification is in subheading 8419.89.50, HTSUS, other machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating.
The protest should be denied. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant, through his broker, as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division