CLA-2 CO:R:C:M 088950 JMH
District Director
U.S. Customs Service
610 South Canal Street
Suite 217
Chicago, IL 60607
RE: Protest and Request for Further Review 3901-90-00042, dated
January 23, 1990; inked film ribbon; thermal transfer
ribbon; typewriter and other similar ribbon; impression
Dear Sir:
This is in response to Protest and Request for Further
Review 3901-90-00042, dated January 23, 1990, regarding certain
thermal transfer ribbons imported by Zebra Technologies
Corporation from Japan. Our decision follows.
FACTS:
The articles in question are thermal transfer ribbons
imported from Japan. The ribbons consist of a base film made of
Toray Rumillor 6C-F53 polyester. The polyester film weighs 8.0
grams per square meter and is 5.7 microns thick. The base film
is coated with either black, blue or red ink. The ink is not a
typical ink, but consists of waxes, resins and pigments and has a
melting point of 75 degrees Celsius. The ribbon is 9.7 microns
thick after the base film is coated with ink.
Once the ribbons are coated, a lead tape is attached with
adhesive to the ribbon, as is an end-sensing piece of polyester
film that is coated with aluminum. The end-sensing piece
notifies the printer that the ribbon has reached its end and
prevents damage to the printer and waste of the print stock used
with the printer. The end-sensing part of the ribbon is then
attached to a paper board ribbon core and the entire assembly is
rolled onto the core. Each roll of the ribbon, regardless of
width, is 300 meters long. The ribbons are available in widths
of 40, 60, 80, 110, 130, and 220 millimeters.
The importer states that these thermal transfer ribbons are
used exclusively with Zebra Thermal Transfer Demand Printers
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Models Z-130 and Z-220. These printers are only operable when
connected to a personal, mini or main frame computer which will
provide the commands which operate the printer. The computer
also provides the information which is transferred to the paper
stock.
The Zebra printers create an image by running the non-inked
side of the ribbon so that it comes into contact with the
printer's thermal printhead. Simultaneously, the inked side of
the ribbon contacts the paper stock. The printhead consists of
numerous geometric facets which are capable of being individually
heated by the printer's internal programming. The printer
receives signals from the computer, converts the computer signals
to electrical signals which heat the printhead in the correct
locations to transfer the programmed image to the paper stock.
This transfer occurs by the heat on the printhead causing the ink
to melt. The images printed are formed from dots which are 125
125 mm2. The resolution of the printers is 8 dots per
millimeter.
The importer entered the thermal transfer ribbons in
subheading 8473.30.40, Harmonized Tariff Schedule of the United
States Annotated ("HTSUSA") as "Parts and accessories (other than
covers, carrying cases and the like) suitable for use solely or
principally with machines of 8469 to 8472...Parts and accessories
of the machines of heading 8471...Not incorporating a cathode ray
tube..." Your office classified the ribbons in subheadings
9612.10.90 and 9612.10.10, HTSUSA, as "Typewriter or similar
ribbons, inked or otherwise prepared for giving impressions,
whether or not on spools or in cartridges... Ribbons..." The
eight digit classification is dependent upon the width of the
ribbons.
ISSUE:
Whether the thermal transfer ribbons are parts and
accessories of automatic data processing units under heading
8473, HTSUSA, or typewriter or similar ribbons under heading
9612, HTSUSA.
LAW AND ANALYSIS:
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation ("GRIs"). GRI
1, HTSUSA, 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..." The
headings in contention are headings 8473 and 9612. These
headings describe the following:
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8473 Parts and accessories (other than covers,
carrying cases and the like) suitable for
use solely or principally with machines of
8469 to 8472...
* * *
9612 Typewriter or similar ribbons, inked or
otherwise prepared for giving impressions,
whether or not on spools or in cartridges...
The only relevant section or chapter note is Section XVI,
Note 2, HTSUSA. Section XVI, Note 2 describes how the parts of
the machines classified within in Section XVI are to be
classified. This note states the following:
Subject to note 1 of this section, note 1 to chapter 84 and to
note 1 of chapter 85, parts of machines (not being parts of the
articles of heading 8484, 8544, 8546 or 8547) are to be
classified according to the following rules:
(a) Parts which are goods included in any
headings of chapter 84 and 85 (other than
heading 8485 and 8548) are in all cases to
be classified in their respective headings;
(b) Other parts, if suitable for use solely or
principally with a particular kind of
machine, or with a number of machines of the
same heading...are to be classified with the
machines of that kind...;
(c) All other parts are to be classified in
heading 8485 or 8548.
The subject ribbons are not described by any of the headings
of chapters 84 or 85 in accordance with Section XVI, Note 2(a).
Since the ribbons cannot be classified according to Section XVI,
Note 2(a), we must consider Section XVI, Note 2(b). There is no
dispute that the subject ribbons are used solely or principally
with printers which are classified under heading 8471, HTSUSA, as
"Automatic data processing machines and units thereof..." Thus,
according to Section XVI, Note 2(b), since the ribbons are solely
or principally used with machines of heading 8471, then the
ribbons are to be classified as parts of those printer units.
Thus, the thermal transfer ribbons are described by heading 8473.
Since it is possible for an article to be classifiable in
more than one heading, heading 9612 must be examined. To better
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understand the language of heading 9612 the Explanatory Notes may
be utilized. The Explanatory Notes, although not dispositive,
should be used to determine the proper interpretation of the
HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Explanatory Note 96.12 states in part the following:
This heading covers the following:
Ribbons, whether or not on spool or in cartridges, for
typewriters, calculating machines, or for any other machines
incorporating a device for printing by means of such ribbons
(automatic balances, tabulating machines, teleprinters,
etc.)...
These ribbons are usually of woven textiles, but sometimes
they are made of plastics or paper. To fall in the heading
they must have been inked or otherwise prepared to give
impressions (e.g. impregnation of textile ribbons, or
coating of plastics strip or paper with colouring matter,
ink, etc.) (original emphasis) Vol. 4, Harmonized
Commodity Description and Coding System ("HCDCS"), p.
1609.
The importer places great weight on the exemplars in the
Explanatory Notes to establish that thermal printers and the
ribbons used with such printers were not contemplated for
classification under heading 9612. This office disagrees.
Heading 9612 includes "ribbons...for any other machines
incorporating a device for printing by means of such ribbons...',
The thermal transfer ribbons are used by machines which print an
image through the use of the thermal transfer ribbons.
The importer believes that the printers in question do not
"print." We agree that the thermal transfer process is not the
traditional method of printing. Printing generally involves
some type of pressure being placed on the ribbon so as to
transfer an image onto stock paper. However, printing may also
mean "to fix or impress, as a stamp, mark, character, idea, etc.
into or something or someone." Gane Bros. & Co. of N.Y. v.
United States, 55 Cust. Ct. 311; C.D. 2596 (December 6, 1965),
citing Bluefries New York, Inc. and Amsterdam Continental Types &
Graphic Equipment, Inc. v. United States, 38 Cust. Ct. 461,
Abstract 60627. The fixing or impressing of an idea does not
necessarily involve physical pressure. Furthermore, Webster' II
New Riverside University Dictionary includes "a photographic
image transferred to paper or a similar surface, usually from a
negative" as part of its definition of "print." Webster's II
New Riverside University Dictionary, p. 935 (1984). Such a
transference from a negative to paper does not involve the use of
pressure. Therefore, we must conclude that thermal transfer
ribbons print an image.
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The ribbons of heading 9612 must be "inked or otherwise
prepared for giving impressions." The thermal transfer ribbons
in question are "inked or otherwise prepared." The polyester
film is coated with a blend of waxes, resins and pigments that
will create an image on paper when melted. We do not need to
determine whether this coating is "ink", for it is at least an
other preparation included in this heading.
Another contention by the importer is that the thermal
transfer ribbons do not create "impressions" as required by
heading 9612. It is argued that to make an impression, pressure
must be utilized and in the thermal transfer process no pressure
is used. It is true that a typewriter creates an image by the
use of pressure by keys onto a ribbon, and that the thermal
printhead of the Zebra printers does not touch the thermal
transfer ribbon. However, the two types of printing have their
similarities. A typewriter key will only print an image where a
key touches the paper, and the image will reflect the key's
design. The image created by a typewriter is created by the use
of directed force placed on a ribbon by a key to transfer the
image onto paper.
Similarly, the thermal transfer ribbon utilizes the
placement of heat to create an image. Although heat is not a
phenomenon capable of being viewed as is the typewriter key, the
heat nevertheless is a force placed onto the ribbon to create an
image. The heat is directed exactly onto the ribbon to create
the programmed image. It is the opinion of this office that the
image transferred to the paper stock is an impression. The
thermal transfer ribbon is otherwise prepared for giving
impressions.
Finally, the importer contends that the Explanatory Notes
indicate that heading 9612 does not encompass ribbons as wide as
the thermal transfer ribbons in question. Heading 9612
excludes, according to Explanatory Note 96.12, rolls of carbon or
other copying paper strip that are not suitable for use as
typewriter or other similar ribbon, but are used to produce
duplicate copies. The Explanatory Note indicates that such
duplicating rolls or strips are generally wider then 3cm. See
Vol. 4, HCDCS, p. 1610. However, these articles which are
excluded from heading 9612 are ribbons or strips which are used
to make copies or duplicate images. The thermal ribbon in
question is used to make originals, not duplicates, and thus, is
not excluded by this note. It is the opinion of this office
that the ribbons in question meet the terms of heading 9612, and
therefore, may be classified under heading 9612.
Since both headings 8473 and 9612 describe the thermal
transfer ribbons, GRI 3, HTSUSA, is implemented. GRI 3 applies
when two or more headings describe an article. GRI 3(a), HTSUSA,
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requires that when two or more headings describe an article, the
most specific heading "shall be preferred." Headings which
specifically describe a type of article ate always deemed to be
more specific than headings which describe "parts." Therefore,
heading 9612 which describes ribbons is more specific than
heading 8473 which describes parts and accessories. The thermal
transfer ribbons are properly described by heading 9612. The
appropriate classification for the thermal transfer ribbons is
subheading 9612.10.90, HTSUSA, as "Typewriter or similar ribbons,
inked or otherwise prepared for giving impressions, whether or
not on spools or in cartridges...Ribbons...Other..." None of the
imported ribbons are less than 30mm in width.
The importer believe that Kores Manufacturing Corp. v.
United States, 3 CIT 178, 545 F. Supp 1303 (1982), aff'd 4 ITRD
1866 (CAFC 1983) is relevant to the present situation. In
Kores Manufacturing Corp, ribbons for automatic data processing
printers were found to be parts of office machines and not
textile materials. This case was resolved under the prior
Tariff Schedules of the United States ("TSUS"). We do not find
this case to be persuasive. Heading 9612 is a new provision and
had no equivalent provision in the TSUS. Where the language of
the tariffs are substantially different this office is not bound
by prior rulings and case law. See House Conference Report
100-576 to Pub. L. 100-418, p. 1582-1583.
HOLDING:
The thermal transfer ribbons imported from Japan are both
parts and accessories of automatic data processing units under
heading 8473 and other similar ribbons under heading 9612, in
accordance with GRI 1. Under GRI 3, heading 9612 is the most
specific heading. Therefore, the thermal transfer ribbons are
properly classified under heading 9612. The appropriate
classification for the thermal transfer ribbons is subheading
9612.10.90, HTSUSA, as "Typewriter or similar ribbons, inked or
otherwise prepared for giving impressions, whether or not on
spools or in cartridges...Ribbons...Other..."
The protest should be denied in full. A copy of this
decision should be forwarded with the Form 19 Notice of Action of
the protest.
Sincerely,
John Durant, Director