CLA-2 RR:TC:MM 958300 JAS
Port Director of Customs
1901 Crossbeam Drive
Charlotte, NC 28217
RE: I/A 31/95; Sym-Sizer, Machinery for Making Paper or
Paperboard, Subheading 8439.10.00, Machinery for
Finishing Paper or Paperboard, Subheading
8439.30.00, Paper Sizing, Coating Machinery; Parts, Subheading
8439.91; On- Line, Off-Line Paper Machines; HQ
955023, Sulzer Escher Wyss, Inc. v. United States
Dear Port Director:
Your memorandum, dated June 22, 1995 (CLA-1-DD:CO
CD/EJF), forwarded this request for internal advice, initiated by
counsel for Valmet, Inc., in its letter to you of May 19, 1995.
The issue is the proper classification of paper coating machinery
called the Sym-Sizer under the Harmonized Tariff Schedule of the
United States (HTSUS)
FACTS:
The Sym-Sizer is a machine used in papermaking to add "size"
to the paper web. Size is a coating consisting primarily of
starch which adds strength to the paper sheet, acting like a glue
to improve the bonding of the fibers to one another. The Sym-Sizer can also add pigmentation to the paper web and can perform
additional coating operations as well. The Sym-Sizer applies the
size material in a film onto parallel rolls which transfer the
size onto the paper web at the nip, or the point where the rolls
are immediately adjacent to each other. The Sym-Sizer reduces
the amount of moisture applied to the paper web during sizing,
thus decreasing the amount of drying required, and reducing the
risk of web breakage.
In submissions, dated May 19, 1995, and February 26, 1996,
counsel maintains the Sym-Sizer alters the surface
characteristics of the paper web before the web has been
manufactured into salable paper, and before on-line calendering,
a process acknowledged to be part of making paper. Counsel has
submitted an Affidavit from a - 2 -
technical consultant to the paper industry for the proposition
that the Sym-Sizer is an advancement over the conventional size
press and that all operations on the papermaking machine between
the headbox and the reel, to include sizing and coating, are
integral to producing the paper that emerges from the machine and
are considered part of the papermaking process. Finally, counsel
cites excerpts from the publication Handbook of Pulp & Paper
Terminology in concluding that a sizing press - over which the
Sym-Sizer is a technological advancement - is a papermaking,
rather than a paper finishing device. For these reasons, the
claim is that the Sym-Sizer is an on-line machine used in the
process of making paper and is therefore classifiable as other
parts of machinery for making paper or paperboard, in subheading
8439.99.10, HTSUS. Based on the principles of HQ 955023, dated
December 6, 1993, your office considers the Sym-Sizer to be a
coating machine classifiable in subheading 8439.30.00, HTSUS, as
machinery for finishing paper or paperboard.
The provisions under consideration are as follows:
8439 Machinery for making pulp of fibrous
cellulosic material or for
making or finishing paper or paperboard...; parts thereof:
8439.30.00 Machinery for finishing paper
or paperboard
...1.2 percent ad valorem
Parts:
8439.99 Other:
8439.99.10 Of
machinery for making paper or
paperboard...Free
ISSUE:
Whether for tariff purposes the Sym-Sizer is regarded as
machinery for "making" paperboard or "finishing" paper or
paperboard.
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. GRI 6 states,
in relevant part, that the classification of goods in subheadings
of the same - 3 -
heading shall be according to the terms of those subheadings and
any related subheading notes and, by appropriate substitution of
terms, to GRIs 1 through 5, on the understanding that only
subheadings at the same level are comparable.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the 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 ENs should always be
consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
A preliminary issue is the applicability of Sulzer Escher
Wyss, Inc. v. United States, 17 CIT 607 (1993), to the
classification of the Sym-Sizer. This decision held that
supercalenders, located off-line after the paper machine reel
section, were papermaking machines, albeit machines classifiable
as calenders for making paper of heading 8420. In eliminating
Customs longstanding practice of regarding only on-line machines
as machines for "making" paper, the court invites the corollary
conclusion that certain on-line machines can be regarded as paper
finishing machines. In short, the location of a machine on-line
or off-line can no longer be a consideration in determining
whether it is a papermaking machine. We agree with counsel that
Sulzer is not controlling because the issue here, papermaking
versus paper finishing, is not relevant to the issue that was
before the court, i.e., the classification of supercalenders in
heading 8420.
Counsel maintains the excerpts from the Handbook of Pulp &
Paper Terminology, cited in its February 26 submission,
substantiate the claim that a size press is a papermaking device
not a paper finishing device. The caption PAPER MACHINE
includes, in relevant part, the statement "A typical paper
machine includes a headbox to distribute the stock dispersion
onto the fabric, followed by the forming section, press section,
dryer part, calender stack and reel." The next caption PAPER
MACHINE SECTIONS includes, in relevant part, the statement "Many
paper machines also have a size press and/or coating station."
Finally, the caption SIZE PRESS includes the statement "Roll
press (either horizontal, vertical, or inclined) located between
the dryer sections in which the paper is given a one or two-sided
application of sizing or other liquid coating. In our opinion,
these excerpts are conflicting and, at best, inconclusive. This
is because the description under the first caption does not
mention size presses, and the clear inference from the
description under the second caption is that not all paper
machines have size presses.
Notwithstanding the affirmations in the Affidavit submitted
by counsel, another source of information on pulp and paper
technology, the Handbook for Pulp and Paper Technologists,
discusses wet end and dry end paper manufacture in two chapters
while - 4 -
sizing and coating machinery are discussed in a separate chapter
on surface treatments. In this regard, the heading 84.39 ENs at
p. 1228 under (II) MACHINERY FOR MAKING PAPER OR PAPERBOARD, make
no mention of size presses or other coating machinery.
Under GRI 6, ENs at p. 1229 are relevant in examining the
scope of subheading 8439.30.00. Included in the group under
(III) MACHINERY FOR FINISHING PAPER OR PAPERBOARD are machines
(other than calenders) for applying various kinds of surface
coatings, size, gum, varnish, enamel, metal powder, wax, etc.;
for coating carbon papers or photographic papers; for coating
paper with textile dust, cork or mica powder, etc., for
wallpapers. These ENs describe the Sym-Sizer. HQ 955023, dated
December 6, 1993, is in accord.
HOLDING:
Under the authority of GRI 1, the Valmet Sym-Sizer is
provided for in heading 8439. It is classifiable in subheading
8439.30.00, HTSUS.
You should mail this decision to the internal advice
applicant, through counsel, no later than 60 days from the date
of this letter. On that date 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, the Freedom of Information
Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division