CLA-2 RR:CR:GC 963032 KBR
U.S. Customs Service
P.O. Box 55580
Portland, OR 97238
RE: Protest 2904-99-100008; Produce Labeling Machine
Dear Port Director:
This is our decision on protest 2904-99-100008 timely filed by counsel on behalf of Sinclair Systems International LLC, on February 4, 1999, against your decision regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a produce labeling system.
The article is a high speed produce labeling machine, model SP-RM6, manufactured in the United Kingdom by Sinclair International LLC. The machine uses a blower to delicately attach a preprinted gummed label to an individual piece of produce so as not to bruise or otherwise damage the individual piece of produce.
The importer claims that produce labeling machine should be classified in the provision for machines for labeling bottles, cans, boxes, bags or other containers under subheading 8422.30.90, Harmonized Tariff Schedule of the United States (HTSUS). Customs decided that because the produce labeling machine labeled individual pieces of produce rather than a container, the produce labeling machine should be classified under subheading 8479.89.97, HTSUS, for machines and mechanical appliances having individual functions, not specified or included elsewhere. The entry was liquidated November 20, 1998.
The importer argued that the produce labeling machine could be used to label containers. In furtherance of this argument, the importer submitted a newsletter which stated that the produce labeling machine is being used in New Zealand to apply labels to foil wrapped chocolate pudding. The importer also submitted a purchase order indicating a California customer’s intent to use the produce labeling machine to label bags of avocados. The importer also submitted a sales brochure for the produce labeling machine which describes the article as “the ideal low-cost labeler for selected fruit” and states that “[f]ruit must be single-filed and pass evenly in line under the labeling head for the SP-RM6 to perform correctly.” The brochure shows pictures of fruit passing through the labeler and pictures of labeled fruit.
Should the produce labeling machine should be classified under subheading 8422.30.90, HTSUS; or under subheading 8479.89.97, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
The HTSUS provisions under consideration are as follows:
8422 Dishwashing machines; machinery for cleaning or drying bottles or other containers; machinery for filling, closing, sealing or labeling bottles, cans, boxes, bags or other containers; machinery for capsuling bottles, jars, tubes and similar containers; other packing or wrapping machinery (including heat-shrink wrapping machinery); machinery for aerating beverages; parts thereof:
* * * * *
8422.30 Machinery for filling, closing, sealing or labeling bottles, cans, boxes, bags or other containers; machinery for capsuling bottles, jars, tubes and similar containers; machinery for aerating beverages:
* * * * *
8479 Machines and mechanical appliances having individual functions,
not specified or included elsewhere in this chapter; parts thereof:
* * * * *
Other machines and mechanical appliances:
* * * * *
* * * * *
* * * * *
The importer argues that the produce labeling machine should be classified as 8422.30.90, HTSUS, as a labeling machine because the HTSUS specifically provides for labeling machines eo nomine in subheading 8422.30.90, HTSUS. However, pursuant to GRI 1, an article must first meet the requirements of the heading prior to determining if the article falls within a subheading. In this situation, subheading 8422.30.90, HTSUS, is a “use” provision. See HQ 083492 (November 8, 1989), HQ 950405 (August 20, 1992). In deciding if the subject articles are provided for eo nomine as labeling machines, Customs may consider the use of the merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73, C.A.D. 699 (1959). Heading 8422, HTSUS, specifically limits this provision to machines used to label bottles, cans, boxes, bags, jars, tubes and similar containers. This heading does not include a labeling machine which labels the product rather than its container. The produce labeling machine labels the individual piece of fruit, not the container and, therefore, does not fall within the “use” provision of heading 8422, HTSUS.
The importer also argues that the produce labeling machine is also used to label foil wrapped pudding and bags of avocados. However, we find that these two situations are fugitive uses. The importer’s sales brochure and even their submissions for the protest describe the article as a “produce labeling system”. Similarly, the brochure’s pictures and descriptions only refer to individual fruit labeling. The courts have held that “[w]hile an importer’s catalogs and advertisements are not dispositive in determining the correct classification of goods under the HTSUS, they are certainly probative of the way the importer viewed the merchandise and of the market the importer was trying to reach.” THK America, Inc. v. United States, 17 CIT 1169, 837 F. Supp. 427 (1993) (citing Marubeni America Corp. v. United States, 821 F. Supp. 1521, 1528 (CIT 1993)). Clearly, the intent of the importer for the produce labeling system is only to label individual pieces of produce.
Pursuant to Additional U.S. Rule of Interpretation 1(a), HTSUS, it is the principal use of the class or kind to which the labeling machine belongs that controls classification here. "Principal use" is that use which exceeds any other single use. See HQ 083885 (July 18, 1989); HQ 223654 (September 4, 1992).
Customs agrees with the court's statement in Hampco Apparel, Inc. v. United States, 12 CIT 92, 96 (1988), that "a fugitive use or uses does not take [a garment] out of the classification of its original and primary use. The primary design, construction, and function of an article will be determinative of classification, whether or not there is an incidental or subordinate function. Trans-Atlantic Co., v. United States, 67 Cust. Ct. 296, 299, C.D. 4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397 (1973).” See HQ 952322 (December 17, 1992). Customs must look at “the principal or predominant use, or the usual and common use. Neither the fugitive use of an article, nor the mere susceptibility or capability of use, is a determinative factor”. HQ 083885, supra. Similarly, if an alternative use cited by an importer is determined to be merely a fugitive use, the classification by "principal use" will not be disturbed. Although the produce labeling machine may be “capable” of labeling something other than individual pieces of fruit, that is clearly not the intent as demonstrated by its marketing.
We find from the evidence of record that the produce labeling machine belongs to a class or kind principally used to place labels on individual pieces of fruit. The other two instances of placing labels on foil wrapped pudding and an order to place labels on a bag of avocados are only fugitive uses of the produce labeling machine, and not controlling. Therefore, the correct classification for the produce labeling machine is in subheading 8479.89.97, HTSUS.
The produce labeling machine is classifiable in subheading 8479.89.97, HTSUS.
The protest should be Denied. In accordance wit Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject : Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
John Durant, Director
Commercial Rulings Division