CLA-2 CO:R:C:M 955929 LTO
Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945
RE: Protest 1001-93-104236; Thermo Sealing Machines; chapter 84,
note 2; EN 84.20; EN 85.15; NY 865382
Dear District Director:
The following is our decision regarding Protest 1001-93-
104236, which concerns the classification of three Thermo Sealing
Machines (GBC 8300 and 9400 System Billhofer) under the Harmonized
Tariff Schedule of the United States (HTSUS). The subject
merchandise was entered on August 28, 1992, and the entry was
liquidated on April 2, 1993. The protest was timely filed on June
30, 1993.
FACTS:
The articles in question are Thermo Sealing Machines, which
are used to laminate clear plastic film to printed paper sheets,
such as maps and book covers. The plastic film serves mainly to
protect the paper, although it may also provide the paper with a
glossy surface to enhance the printing. As imported, the machines
consist of a paper sheet feeder, plastic film unwinding roller,
film laminating rollers, film slitter and a control panel. In
addition, a hot water boiler is purchased domestically and
assembled to the machine at the customer's plant.
In operation, the pre-printed paper sheets are manually
stacked onto the sheet feeder and a continuous roll of film, one
side of which is coated with a heat-sensitive adhesive, is placed
on the film unwinder. Suction grippers pull individual sheets from
the pile in such a manner that the end of one sheet slightly
overlaps the beginning of the next sheet. The stream of sheets - 2 -
thus formed is simultaneously fed, along with the film, to the
laminating rollers. The laminating rollers consist of a chrome
roller and rubber-covered counter pressure roller. The chrome
roller is heated to a temperature of approximately 90 degrees
Centigrade by hot water from the boiler which is circulated into
the roller. This heat, along with the pressure generated by the
two rollers, causes the adhesive to melt and applies the film to
the paper web. The film is slit by means of a rotating cutter, and
suction grippers pull the laminated sheets apart and form them into
a pile at the end of the machine.
The machines were entered under subheading 8439.30.00, HTSUS,
which provides for machinery for finishing paper or paperboard.
However, the protestant now claims that they are classifiable under
subheading 8515.80.00, HTSUS, which provides for other electric
(including electrically heated gas), 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. The machines were classified upon
liquidation under subheading 8420.10.90, HTSUS, which provides for
other calendering or rolling machines.
ISSUE:
Whether the Thermo Sealing Machines are classifiable as
other electric (including electrically heated gas), 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, under subheading 8515.80.00,
HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and any
relative section or chapter notes . . . ."
The subheadings at issue are as follows:
8420 Calendering or other rolling machines, other
than for metals or glass, and cylinders
therefor; parts thereof:
Calendering or other rolling machines:
8420.10.90 Other (3.7% ad valorem)
* * * * * * * * * * * * *
8439 Machinery for making pulp of fibrous
cellulosic material or for making or finishing - 3 -
paper or paperboard (other than the machinery
of heading 8419); parts thereof:
8439.30.00 Machinery for finishing paper or paperboard
(2%)
* * * * * * * * * * * * *
8515 Electric (including electrically heated gas),
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; . . . parts thereof:
8515.80.00 Other machines and apparatus (2%)
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Co-operation
Council's official interpretation of the Harmonized System. While
not legally binding, the ENs provide a commentary on the scope of
each heading of the Harmonized System, and are generally indicative
of the proper interpretation of these headings. See T.D. 89-80, 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 85.15, pg. 1356, indicates that the machines for welding
thermoplastic materials encompassed by heading 8515, HTSUS, utilize
either an electrically heated gas, electrically heated elements or
a high frequency alternating field to join plastic surfaces
together. The Thermo Sealing Machines do not utilize any one of
these three methods, nor do they join two sheets of plastic
together. Rather, they apply a plastic film to a sheet of paper.
Accordingly, these machines are not covered by heading 8515, HTSUS.
NY 865382, dated August 2, 1991, cited by the protestant, is
inapplicable to the case at hand. In that ruling, a device which
used an electric filament to heat seal small documents within
plastic sleeves was held to be classifiable as an electric welding
machine or apparatus under subheading 8515.80.00, HTSUS.
EN 84.20, pgs. 1178-9, describes the calendering machines of
heading 8420, HTSUS, as follows:
These machines consist essentially of two or more
parallel cylinders or rollers revolving with their
surfaces in more or less close contact so as to
perform the following operations, either by pressure
of the cylinders alone or by pressure combined with
friction, heat or moisture:
. . . (3) The application of dressings or surface
coatings.
- 4 -
The Thermo Sealing Machines utilize pressure and heat
generated by two parallel rollers to apply a film coating to the
surface of a paper sheet. Moreover, the heated chrome roller,
which along with the other laminating roller causes the adhesive to
melt and applies the film to the paper web, is referred to in the
operating manuals and commercial invoice as a calendering roller.
EN 84.20, pg. 1179, further states that "calendering machines
which merely incorporate auxiliary appliances, such as impregnating
baths or rollers, winding or cutting devices, remain in this
heading." While the machines also perform film unwinding and
cutting operations, prior to and after the calendering of the
plastic film to the paper, they are the type of auxiliary
operations mentioned in EN 84.20. Therefore, it is our opinion
that the Thermo Sealing Machines are classifiable under subheading
8420.10.90, HTSUS.
With regard to the protestant's original claim that the
machines were classifiable under subheading 8439.30.00, HTSUS, note
2 to chapter 84 provides, in part, as follows:
Subject to the operation of note 3 to section XVI, 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.
According to this note, the Thermo Sealing Machines would be
classifiable under heading 8420, HTSUS, even if they were also
prima facie classifiable under heading 8439, HTSUS. Therefore, it
is unnecessary to make this determination.
HOLDING:
The Thermo Sealing Machines (GBC Models 8300 and 9400) are
classifiable under subheading 8420.10.90, HTSUS, which provides for
other calendering or rolling machines.
The protest should be DENIED. 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 the 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 - 5 -
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