CLA-2:CO:R:C:M 955566 JAS
District Director of Customs
10 Causeway St., Suite 603
Boston, MA 02222-1059
RE: PRD 0401-93-100083; Fine Plasma Cutting Machine, Welding
Machine; Machine-Tool for Surface-Working Materials by
Plasma Arc Process, Heading 8456; Plasma Arc Welding,
Welding Machine Capable of Cutting, Heading 8515; Functional
Unit, Section XVI, Note 4, HTSUS
Dear Sir:
This is our decision on Protest No. 0401-93-100083, filed by
counsel on behalf of Komatsu-Cybermation, Inc., against your
action in classifying certain fine plasma cutting machines from
Japan. The entries under protest were liquidated on November 13
and November 27, 1992, and this protest timely filed on February
11, 1993.
FACTS:
The machines in question are the Fine Plasma G940 and G990.
These machines consist of the following components: a unit that
supplies both power and oxygen to the cutting torch, a junction
box referred to as a high frequency generator, plasma torch,
cables for connecting these components, plus nozzles and tungsten
electrodes to be fitted to the end of the torch. These machines
are said to be capable of performing three distinct functions;
they can weld and spot weld using one torch and cut using another
torch. In operation, when the supply unit is activated a high
frequency voltage is generated between the electrode and the
nozzle. Simultaneously, oxygen gas is supplied to the torch
where it is ionized to form a plasma. As the pilot arc reaches
the work the main arc is ignited. It is this plasma arc that
either welds or cuts the material. The cutting function is
accomplished by a torch with a small hole that produces a narrow
arc. In its welding mode, a torch with a larger hole that
produces a wider arc is utilized. A controller is added after
importation when the machine is mounted on a table. - 2 -
The models G940 and G990 are to be combined, after
importation, with a cutting table and integrated CAM workstation
and related software, into what protestant describes as the RASOR
Cutting System.
The machines were entered under the provision for machines
and apparatus for arc welding of metals, in subheading
8515.30.00, Harmonized Tariff Schedule of the United States
(HTSUS). The concerned import specialist determined that the
machines were designed exclusively for cutting, and liquidated
the entries under the provision for machine tools for working
metal by removal of material, by plasma arc process, in
subheading 8456.90.10, HTSUS.
The provisions under considerations 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:
8456.90 Other:
8456.90.10 For working metal...4.4 percent
* * * * *
8515 Electric, laser or other light or photon
beam, ultrasonic, electron beam, magnetic
pulse or plasma arc soldering, brazing or
welding machines and apparatus, whether or
not capable of cutting:
Machines and apparatus for arc (including
plasma arc) welding of metals:
8515.31.00 Fully or partly automatic...2 percent
8515.39.00 Other...2 percent
ISSUE:
Whether a plasma arc welding machine that, in its condition
as imported, is capable only of cutting, is a machine of heading
8515.
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 - 3 -
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.
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, 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
Protestant maintains that the models G 940 and G 990 are
multi-functional machines and are not designed exclusively for
cutting. Whether they can weld or cut is determined by the
torch, hose, and a controller; it is the controller that
regulates the flow of plasma arc to the torch. Protestant
concludes that because these machines are imported without
controllers, which are sourced domestically, they are not capable
of welding or cutting. Protestant maintains that interchanging
the cutting and welding torches is a simple procedure requiring
no alteration to the machine, and that the cost of the hose and
torch is only 10 percent of the value of the complete machine.
It should be noted that, as imported, the G940 and G990
incorporate power units and are fitted with a cutting hose and
torch.
Relevant ENs at p. 1356 exclude from heading 8515 machines
designed exclusively for cutting. These machines are referred to
heading 84.56. It is apparent, therefore, that cutting machine
tools "work" material for purposes of heading 8456. ENs at p.
1269 exclude from heading 8456 soldering, brazing or welding
machines, whether or not capable of cutting. These are referred
to heading 85.15.
The ENs notwithstanding, the GRIs are paramount in
classifying goods imported into the Customs territory. A machine
consisting of individual components interconnected by electric
cables or other devices intended to contribute together to a
clearly defined function covered by one of the headings in
chapter 84 or chapter 85, is to be classified in the heading
appropriate to that function. Section XVI, Note 4, HTSUS.
Counsel's April 20, 1993, letter to Customs at Boston describes
these machines and their manner of operation. The components
that perform the cutting or welding consist of the plasma power
supply unit, junction box, plasma torch and connecting hoses and
cables. No mention is made of a controller. - 4 -
As described, the machine tools in issue are functional
units within Note 4 which, in their condition as imported, are
designed exclusively for cutting.
HOLDING:
The Komatsu fine plasma machine tools, models G940 and G990,
are provided for in heading 8456. They are classifiable in
subheading 8456.90.10, HTSUS.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, you should mail this decision,
together with the Customs Form 19, to the protestant no later
than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing 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 to the public via the
Diskette Subscription Service, Lexis, the Freedom of Information
Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division