• HQ H006324
• Apr 23, 2010

• Type : Classification • HTSUS : 8443.11.10
•  Related:   954820; 960560; 956538   

CLA-2 OT:RR:CTF:TCM H006324 DSR

Port Director
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, New Jersey 07102

ATTN: Jennifer Tagliaferro, Supervisory Entry Specialist

RE: Application for Further Review of Protest No. 4601-06-102815; Classification of printer tower units

Dear Port Director:

This is in response to an Application for Further Review of Protest No. 4601-06-102815, made on behalf of MAN Roland, Inc. (hereinafter “Protestant”), forwarded by your memorandum of January 25, 2007. The issues addressed by this ruling originate from the importation of a “Colorman” printer tower, and a portion of a Colorman printer tower. The merchandise was entered on August 10, 2005, and August 16, 2005, and U.S. Customs and Border Protection (CBP) classified the merchandise under subheading 8443.11.10, of the Harmonized Tariff Schedule of the United States (HTSUS), as “double-width newspaper printing presses,” dutiable at 3.3% ad valorem.

FACTS:

The merchandise in question consists of a “full” printer tower and a Colorman printer unit. The “full” printer tower consists of the combination of two Colorman printing units used for printing multiple colors on one “web” of newsprint. Each Colorman printing unit is of box-type construction and contains four printing couples. A printing couple is the single component used to print ink on a sheet of newsprint, and is characterized by a plate cylinder and a blanket cylinder (couple) with associated dampening and inking units.

The printer units are designed to print upon reel-fed, offset, double-width, newsprint pages using the offset printing technique. They are replacements for existing printer towers or printer units in certain reel-fed, offset, double-width printing press lines. Each complete printing press line will consist of a total of 10 printer tower units, and other ancillary machinery, such as an ink supply line, a compressed air supply line, control console, drive controller, and sheet folder, to enable the publication of a complete multi-page newspaper in a single, continuous run.

Upon liquidation, CBP classified the printer tower, and the single printer unit, in subheading 8443.11.10, HTSUS, as “printing machinery used for printing by means of printing type, blocks, plates, cylinders and other printing components of heading 8442 … machines for uses /ancillary to printing; parts thereof: Offset printing machinery: Reel-fed: Double-width newspaper printing presses,” dutiable at 3.3% ad valorem.

Protestant asserts that the classification of the merchandise was in error, and that the correct tariff classification is subheading 8443.90.90, HTSUS, as “printing machinery used for printing by means of printing type, blocks, plates, cylinders and other printing components of heading 8442 … machines for uses ancillary to printing; parts thereof: Parts: Other,” and free of duty. Alternatively, Protestant asserts that the merchandise is classifiable under subheading 8443.11.50, HTSUS, as “printing machinery used for printing by means of printing type, blocks, plates, cylinders and other printing components of heading 8442 … machines for uses ancillary to printing; parts thereof: Offset printing machinery: Reel-fed: Other,” and also free of duty.

ISSUE:

Whether the printer tower, and the Colorman printing unit, are classified under (1) subheading 8443.11.10, HTSUS, as offset, reel-fed, double-width newspaper printing presses; (2) under subheading 8443.11.50, HTSUS, as other off-set, reel-fed printing machinery; or (3) under subheading 8443.90.90, HTSUS, as parts of printing machinery.

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification.  The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004.  See Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review is properly accorded to the protest pursuant to 19 C.F.R. § 174.24(b), because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the question of the classification of the printer units was an issue of first impression at the time the protest was filed.

The 2005 HTSUS provisions under consideration in this case are as follows:

8443 Printing machinery used for printing by means of printing type, blocks, plates, cylinders and other printing components of heading 8442; ink-jet printing machines, other those of heading 8471; machines for uses ancillary to printing; parts thereof: Offset printing machinery: 8443.11 Reel-fed: 8443.11.10 Double-width newspaper printing presses 8443.11.50 Other * * * 8443.90 Parts: 8443.90.90 Other * * * * Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized.  The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

There is no issue that heading 8443, HTSUS, clearly covers offset printing machinery and parts thereof, and that the subject merchandise falls within that heading. What remains at issue is Protestant’s assertion that the term “double-width newspaper printing presses” of subheading 8443.11.10, HTSUS, is circumscribed by a requirement that a newspaper printing press contain multiple printer units. Protestant concludes that the subject printer tower, and portion thereof, are merely “parts” of printing presses, and are classified under subheading 8443.90.90, HTSUS. Alternatively, Protestant argues that if the merchandise are not “parts” of printing presses, then they are a type of offset, reel-fed printing machinery that are “other” than double-width, offset, reel-fed printing presses, and are classified under subheading 8443.11.50, HTSUS. GRI 6 provides that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1-5, on the understanding that only those subheadings at the same level are comparable.

In support of its argument, Protestant states that the printer tower is incapable of printing upon double-width newsprint in its imported condition. Protestant states that in order to do so, it must be connected to a “complete newspaper printing press” to print on a continuous roll of paper at a specific speed and tension of the roll.  Once in the press, the tower must be connected to other ancillary machinery such as reel stands and must be integrated into an existing webbing-up system, which consists of various web-fed devices. In addition, according to Protestant, the printing unit itself does not contain ink and must be fed ink through the customer’s existing ink supply line.  The unit must also be fed dampening solution through an existing customer dampening supply line and connected to compressed air from an existing compressed air supply line.  The unit must also be connected and integrated into control consoles where the consoles can direct the units and operators can make adjustments from a remote location.  The unit must also be connected and integrated into an existing drive controller that controls the speed of the unit’s rollers to match the desired web speed.  Finally, in order to produce a newspaper in a single run, the unit must be connected into a series of existing superstructures that move the paper away from the print unit and then into the folder.  Protest, Attachment 4, Contractual Scope of Work.

Protestant also asserts that two CBP rulings support its contention that the subject printer tower units are not printing presses as contemplated by subheading 8443.11.10, HTSUS. In HQ 954820, dated December 13, 1993, CBP addressed the classification of various parts of a flexographic printing press. The main printing head of the flexographic press was shipped separately from the other parts. In the ruling, CBP concluded that the shipment of the various parts (without the main printing head) did not constitute an unfinished printing press and, thus, were not classifiable as flexographic printing machinery. In reaching that conclusion, CBP noted that the main printing head plays the primary role in relation to the use of the printing press and imparts its essential character.

In HQ 960560, dated September 18, 1998, CBP addressed the classification of telephone directory printing press components contained within four entries. Entry #1 consisted mainly of printing units and miscellaneous components. Entry #2 consisted mainly of printing units and control desks. Entry #3 contained paper reel stands and miscellaneous components. Entry #4 contained a double-width folder and the structural components of the printing press. The importer claimed that taken together, the four entries contained a disassembled reel-fed offset printing press for the production of telephone directory pages. First, CBP concluded that the subject components contained in the four separate entries could be not classified as an incomplete and unassembled printing press under GRI 2(a) because they were not imported together. However, CBP found that the printing units, drive motors and motors for circumferential register and chain drives contained in Entry #2, and the printing units in Entry #1, imparted the essential character of complete reel-fed offset printing presses, and were classifiable as such under GRI 2(a).

Protestant asserts that the subject merchandise are not “printing presses” because they are not connected to an ink supply, dampening solution, and various external machinery to insert the reel-fed newsprint into the printer units and configure it once it leaves the printer units. Insofar as the subject merchandise has been imported in incomplete states, i.e., not connected to a supply of ink, dampening solution, and compressed air, or a control console or drive controller, GRI 2(a) is implicated by GRI 6. By its terms, GRI 2(a), HTSUS, extends the scope of a 4-digit heading to include an article, whether assembled or unassembled, that is imported incomplete or unfinished. The EN to GRI 2(a) provides:

The first part of Rule 2(a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article. (emphasis added).

The ENs to GRI 2(a) direct us to the General ENs to Section XVI, HTSUS, which provide, in pertinent part, as follows:

(IV) INCOMPLETE MACHINES (See General Interpretative Rule 2 (a))

Throughout the Section any reference to a machine or apparatus covers not only the complete machine, but also an incomplete machine (i.e., an assembly of parts so far advanced that it already has the main essential features of the complete machine). Thus a machine lacking only a flywheel, a bed plate, calendar rolls, tool holders, etc., is classified in the same heading as the machine, and not in any separate heading providing for parts. Similarly a machine or apparatus normally incorporating an electric motor (e.g., electro-mechanical hand tools of heading 84.67) is classified in the same heading as the corresponding complete machine even if presented without that motor.

Thus, the merchandise classifiable under heading 8443, HTSUS, includes not only complete, fully-assembled machinery used for printing, but also "incomplete" machinery used for printing (provided that, as entered, any such "incomplete" machinery has the essential character of a complete machine). See The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, 1398 (Ct. Int’l Trade 2008). Under GRI 2(a), the factor or factors that determine essential character will vary with the goods. In interpreting the HTSUS, we have construed the term "essential character" to mean the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. See HQ 956538, dated November 29, 1994. Indeed, in the rulings Protestant has referred to in support of its position, it was stated that “[w]ithout the main printing head, it would be impossible for the printing press to function as intended. Therefore, the main printing head plays the primary role in relation to the use of the printing press.” HQ 960560, supra (quoting HQ 954820, supra). Here, we note that the subject printer units contain the items that play the essential roles in the actual printing process for such machines, e.g., the plate cylinders and blanket cylinders. To concur with Protestant’s belief that a subject printer unit is not a printing press because it is not connected to a supply of ink, dampening solution, and compressed air, or a control console or drive controller, is akin to agreeing that an otherwise complete automobile with an empty gas tank, and missing tires or steering wheel, is no longer essentially an automobile – an illogical conclusion.

Protestant also refers to an antidumping investigation determination issued by the United States Department of Commerce (“Commerce) in which Commerce states:

[T]he products covered are large newspaper printing presses, including press systems, press additions and press components, whether assembled or unassembled, whether complete or incomplete, that are capable of printing or otherwise manipulating a roll of paper more than two pages across … In addition to press systems, the scope of these investigations includes the five press system components. They are:

(1) a printing unit, which is any component that prints in monocolor, spotcolor and/or process (full) color; (2) a reel tension paster ("RTP"), which is any component that feeds a roll of paper more than two newspaper broadsheet pages in width into a subject printing unit; (3) a folder, which is a module or combination of modules capable of cutting, folding, and/or delivering the paper from a roll or rolls of newspaper broadsheet paper more than two pages in width into a newspaper format; (4) conveyance and access apparatus capable of manipulating a roll of paper more than two newspaper broadsheet pages across through the production process and which provides structural support and access; and (5) a computerized control system, which is any computer equipment and/or software designed specifically to control, monitor, adjust, and coordinate the functions and operations of large newspaper printing presses or press components.

A press addition is comprised of a union of one or more of the press components defined above and the equipment necessary to integrate such components into an existing press system.

Notice of Final Determination of Sales at Less Than Fair Value: Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Germany, 61 Fed.Reg. 38166, 38167 (July 23, 1996). Protestant asserts that Commerce’s definition of “newspaper printing press” necessitates the existence of multiple printing units. Instead, the determination signifies that according to Commerce, a combination of the five components listed (including a single printing unit) can constitute a complete press system.

Protestant also draws upon printing industry treatises or textbooks purporting to require that a reel-fed, offset, double-width, newspaper printing press contain multiple printing units. To wit:

Large daily newspapers are printed on web presses that pull paper from more than one roll of paper at a time … The printing units on a web offset press are set up in a line so the web moves through them in a straight line … A press can have up to eight or more printing units and might be capable of printing both sides of the web in four or more colors in one pass through the press …

Kenneth F. Hird & Charles E. Finley, Offset Lithographic Technology at 594 (4th Ed. 2001). The glossary to Offset Lithographic Technology defines a “printing unit” as “the part of the printing press where printing takes place. This unit contains the plate cylinder, blanket cylinder, and impression cylinder.” Id. at 747. Finally, Protestant has submitted an affidavit authored by Dr. Mark F.J. Bohan, Vice President, Technology and Research, Printing Industries of America, in which Dr. Bohan expresses that the subject printer units are not considered printing presses in their own right, and posits the following:

A typical newspaper press may have some color towers, but these color towers are not necessary for the press to function to provide the complete newspaper in a single run. Moreover, in order for a color tower to function as part of the press, it must be connected into the production line containing the printing units, in-feed units, control desks and cabinets, folder equipment, and other necessary parts of a complete press …”

We believe that Protestant conflates the term “printing press” with printing press system. Dr. Bohan’s statement presumes that a newspaper “printing press” must consist of multiple printing units. Indeed, the tie that binds each of Protestant’s assertions is the conclusion that a “printing press” must contain multiple printer units in order to be classified under subheading under subheading 8443.11.10, HTSUS. We disagree with that conclusion.

Here, Protestant has entered complete printer units, and the question that remains is whether the eo nomine provision “double-width newspaper printing presses” of subheading 8443.11.10, HTSUS, refers to only massed units of rotary, reel-fed, offset presses, or to single units as well. As an eo nomine provision, the term “double-width newspaper printing presses” covers all forms of the described merchandise and is not circumscribed by any limiting language. “It is well established that an eo nomine provision includes all forms of the named article unless Congress indicates to the contrary.” See National Advanced Systems v. United States, 26 F. 3d 1107, 1111 (Fed. Cir. 1994).

The EN to 84.43 explains that the printing machinery covered by that heading can be grouped into four main categories, one of which, rotary presses, is the subject of this protest. The EN further states the following:

Rotary presses, in their simplest form … usually consist of a cylinder with two semi-cylindrical plates (letter press), or of cylinders which may be either engraved (gravure printing) or impressed (offset printing) … Rotary presses can be divided into two sub-categories:

Reel-fed presses, in which some large rotary presses combine several printing units on a single frame and which enable all the pages of a newspaper or periodical to be printed in one sequence of operations, so that, in the final result, all the pages are delivered, cut, folded, assembled, stapled and stacked by various ancillary machines working in conjunction with the printing machine. (emphasis added)

The HTSUS and the ENs do not define the term “printing press.” A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380, 382 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 134, 673 F.2d 1268, 1271 (1982). The New Oxford American Dictionary (2nd Ed.) defines a printing press as a “mechanical device or a machine for printing, esp. on paper, from types, blocks, or plates.” See also Merriam-Webster’s Collegiate Dictionary (10th Ed.) (defines a printing press as a “machine that produces printed copies”). The subject printer units are capable of printing upon reel-fed, double-width newsprint pages using the offset printing technique. While a “newspaper” typically comes in the form of multiple “unbound sheets of printed matter consisting mainly of current news of general interest, together usually with literary articles on subjects of current, historical, biographical, etc., interest …,” there is simply no requirement in the tariff that a double-width newspaper printing press must be capable of printing a multi-page newspaper in one pass for it to be considered a “complete” press. See EN 49.02(1). Also, while it may be true that printing press systems employed by large newspaper concerns tend to consist of a line of several printing units that simultaneously produce multiple sheets of newsprint that are then cut and folded into multi-page newspapers, we believe that is a result of economic efficiency rather than a matter of necessity. See Offset Lithographic Technology at 594, supra (explaining how the speed offered by lines of web offset printing presses makes then especially suitable for long printing runs). Indeed, a “press can have up to eight or more printing units.” Ibid. (emphasis added). Drawn to its logical conclusion, the statement indicates that a printing press can consist of one (or more) printing units.

As a result, we find that the subject merchandise is classified by subheading 8443.11.10, HTSUS, which covers “printing machinery used for printing by means of printing type, blocks, plates, cylinders and other printing components of heading 8442; ink-jet printing machines, other those of heading 8471; machines for uses ancillary to printing; parts thereof: Offset printing machinery: Reel-fed: Double-width newspaper printing presses.” HOLDING:

Pursuant to GRI 1 and GRI 2(a) (through the application of GRI 6), the printer tower and the printer unit are classifiable under heading 8443, HTS (2005). Specifically, they are classifiable under subheading 8443.11.10, HTSUS (2005), which covers “printing machinery used for printing by means of printing type, blocks, plates, cylinders and other printing components of heading 8442; ink-jet printing machines, other than those of heading 8471; machines for uses ancillary to printing; parts thereof: Offset printing machinery: Reel-fed: Double-width newspaper printing presses.” The column one, general rate of duty at the time of entry was 3.3 percent ad valorem. You are instructed to DENY the protest.  In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division