HQ 952345
NOVEMBER 9 1993
CLA-2:CO:R:C:M 952345 JAS
Thomas J. O'Donnell, Esq.
Sonnenberg, Anderson, O'Donnell & Rodriguez
200 South Wacker Drive
Chicago, ILL 60606
RE: Step-and-Repeat Machine; Machine for Composing and
Printing Plates; Printing Plate Imaging Machine,
Subheading 8442.10.00; Machine for Producing Images
on Light-Sensitive Plates, Photographic Apparatus,
Heading 9010; Section XVI, Note 1(m); HQ 953047
(I.A. 75/92), HQ 950665 Reconsidered
Dear Mr. O'Donnell:
In your letter of July 28, 1992, on behalf of Strobbe, Inc.,
you ask for reconsideration of our response to Internal Advice
42/91, contained in HQ 950665, dated January 10, 1992. This
decision related to the classification of step-and-repeat
machines designated the Labelstepper and Formstepper Autoload 125
and 400, imported by your client through the port of Chicago.
Additional discussions at a meeting held in our office on
December 2, 1992, were summarized in a later submission, dated
January 25, 1993.
FACTS:
You have omitted any factual discussion of the machines in
issue because, as you indicate on p. 2 of your July 28
submission, these machines were described in detail in the IA
request that became HQ 950665. For this reason, the factual
discussion in HQ 950665 is incorporated by reference in this
decision.
The provisions under consideration are as follows:
8442.10.00 Phototypesetting and composing machines
...Free
* * * * * - 2 -
9010.20.10 Other apparatus and equipment for
photographic laboratories: Contact
printers...2.2 percent
* * * * *
9010.20.60 Other apparatus and equipment for
photographic laboratories:
Other...3.7 percent
ISSUE:
Whether step-and-repeat machines, as described, are
apparatus and equipment of heading 9010.
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.
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.
Your arguments are briefly summarized as follows: (1)
machines that utilize the photographic process are included in
heading 8442; (2) the machines in issue are provided for eo
nomine in heading 8442 because they actually compose images
and/or text rather than just transfer it to printing plates; (3)
the principal function of step-and-repeat machines is appropriate
to goods of heading 8442; (4) relevant Explanatory Notes indicate
that machines of heading 8442 utilize the photographic process
and specifically include phototypesetting and composing machines;
(5) Customs has ruled that substantially similar machines
utilizing the photographic process are classifiable in heading
8442; (6) step-and-repeat machines are not principally used in
photographic laboratories; and, (7) these machines were
classified under the TSUS as phototypesetting and composing
machines. - 3 -
The majority of your arguments are in support of the heading
8442 classification. However, articles of chapter 90 are
precluded from classification in chapter 84. See Section XVI,
Note 1(m), HTSUS. Therefore, if the step-and-repeat machines in
issue are apparatus and equipment of heading 9010, or are goods
of any other heading in chapter 90, it is clear they cannot be
classified in heading 8442. For this reason, we will touch only
briefly on the arguments in support of the heading 8442
classification, with greater emphasis on the heading 9010 issue.
The courts have sanctioned the Explanatory Notes as useful
guides to understanding and interpreting provisions of the HTSUS.
We do not agree that the notes support classification of these
machines in heading 8442. Relevant ENs on heading 8442 state, at
p. 1237, "The heading covers only phototype-setting or composing
machines which actually set type even if the type is photographed
after it has been set (Emphasis original). The notes continue by
stating the heading excludes photographic contact printers and
similar photographic apparatus for preparing printing plates or
cylinders. The notes refer these goods to chapter 90. Step-and-
repeat machines do not set or compose type as indicated in the
notes. The type has already been composed on the transparencies
before they reach the step-and-repeat machines. These machines
prepare printing plates in a manner described in the notes by
arranging film transparencies in the desired order and utilizing
a photographic process to transfer the film's images to the
plates.
The heading 8442 classification notwithstanding, the real
issue is whether these machines are encompassed by heading 9010
or any other provision in chapter 90. Heading 9010 is clearly a
provision governed by "use." You state that these machines have
no "photographic" capability, that is, they do not project,
enlarge or reduce images from a negative, and that exposure of
the printing plate is made by an ultraviolet light source. No
darkroom or safelight conditions are required. For this reason,
you conclude that step-and-repeats belong to a class or kind of
machine principally used in the printing industry and not in
photographic laboratories.
Initially, heading 9010 is broader in scope than you
contend. The heading encompasses, among other things, apparatus
for the projection of circuit patterns on sensitized
semiconductor materials. This is specialized apparatus unique to
the semiconductor industry and is not of a kind commonly found in
a "photographic' laboratory; rather, it is apparatus that
utilizes or is based on photographic principles. Where tariff
terms are not defined in the statute, the common and commercial
meaning of those terms shall prevail unless a contrary
legislative intent is indicated. We are aware of no
lexicographic authority that defines the expression "photographic
laboratory." In HQ 088649 and HQ 083123, dated May 28, 1991, and - 4 -
December 18, 1989, respectively, Customs ruled that in common
meaning the terms "photography" and "laboratory" are broad and
liberal.
Where words have both a broad and a narrow common meaning,
or the meaning is otherwise in dispute, it is proper to refer to
the legislative history, administrative practice, sections
related to those in which the terms appear, and other extrinsic
aids. F.W. Myers, Inc. v. United States, 12 CIT 566, Slip Op.
88-78 (1988), and related cases. The heading 9010 ENs are not
helpful in resolving the issue. However, in different tariff
provisions where it appears, the term "photographic" has been
given a similarly broad interpretation. HQ 088649 and HQ 950301,
dated March 10, 1992.
We are satisfied that there is sufficient basis to regard
step-and-repeat machines as belonging to a class or kind of
apparatus principally used in "photographic laboratories," as
that term is understood for tariff purposes. HQ 953047, dated
November 9, 1993 (I.A. 75/92) is in accord. This decision held
that substantially similar step-and-repeat machines were not
goods of heading 8442, but were apparatus and equipment for
photographic laboratories of subheading 9010.20.60.
HOLDING:
Under the authority of GRI 1, the Strobbe step-and-repeat
machines designated the Labelstepper and Formstepper Autoload 125
and 400 are provided for in heading 9010.
There is some indication that step-and-repeat machines
function like or are akin to platemaking apparatus which perform
a contact printing function appropriate to goods of subheading
9010.20.10. This is because both utilize a vacuum and light
source in which the vacuum exhausts the air pressure under the
plate to insure positive contact with the frame. This form of
imaging is believed to be simply a form of contact printing, the
only major difference being that platemakers image only once
while step-and-repeat machines repeat the imaging. We can only
conclude that the evidence of record is not sufficient at this
time to permit a proper assessment of this argument. For this
reason, the Strobbe step-and-repeat machines in issue will
continue to be classified in subheading 9010.20.60, HTSUS, as
other apparatus and equipment for photographic laboratories. - 5 -
EFFECT ON OTHER RULINGS:
The principles of I.A. 42/91, expressed in HQ 950665, dated
January 10, 1992, are affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division