CLA-2 RR:TC:MM 959857 JAS
Port Director of Customs
610 South Canal Street
Chicago, IL 60601
RE: PRD 3901 -96-100109; Press Plates Used in the Manufacture of High Pressure Decorative Laminates; Steel Sheets Chemically Etched or Peened, Heading 8442, Machinery for Preparing Printing Plates, HQ 083325; Articles Returned to the United States After Having Been Advanced in Condition Abroad, Subheading 9802.00.50, Export Packers, Ltd. v. U.S.,
19 CFR 10.8, Certification of Registration, 19 CFR 10.8(k)
Dear Sir:
This is our decision on Protest 3901-96-100109, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of certain press plates, products of
France, used in the manufacture of high pressure decorative
laminates. The entry was liquidated on October 13, 1995, and
this protest timely filed on January 11, 1996. In a submission,
dated August 26, 1997, counsel for the protestant asserts an
alternative claim for a partial duty exemption under subheading
9802.00.50, HTSUS, as articles returned to the United States
after having been advanced in value or improved in condition
while abroad.
FACTS:
The merchandise is twenty (20) press plates or flat sheets
of electro-slag refined grades of American Iron and Steel
Institute (AISI) grades 410 and 630 stainless steel, which have
been either chemically etched with a finish composed of gently
rolling hills and valleys, designated "Matte-58," or with a
peened finish composed of microscopic craters or moonscape,
designated "Artisan-43." These press plates are used in flat-bed hydraulic presses utilizing heat and pressure to impart a
desired design in the creation of thermoset plastic sheets known
generically as high pressure decorative laminates. - 2 -
The 20 press plates which are the subject of this protest
were originally purchased by protestant from a subsidiary in
France and imported into the U.S. Such plates are used to emboss
an essentially perfect replication of their finish into the
surface of the decorative laminate produced during the pressing
operation. During use in the U.S., these 20 plates became
damaged, which necessitated their temporary exportation to France
for refinishing. All 20 plates were originally chemically etched
with a finish known as "Matte-58". During the course of
refinishing the plates in France, it was decided to convert 13 of
the plates to a new peened finish designated "Artisan-43". The
remaining 7 were refinished with the original "Matte-58" finish.
According to information provided by protestant, all 20
plates returned to France first underwent tolerance and spindle
grinding to remove the remaining original finish on the plates.
The 7 plates which were refinished with the "Matte-58" finish
were coated with a photo reactive chemical, covered with a
transparency and exposed to ultraviolet light. The exposure was
then developed, which served as a pattern for the new finish on
the plates. The empty spaces in the pattern were filled in by
hand, after which the photo reactive chemical was removed by shot
blasting. The entire plates were then etched with ferric
chloride, washed, electropolished, washed again, and shot blast
to the desired gloss.
The 13 plates which were converted to the "Artisan-43"
finish were shot blast with beads to produce the printing pattern
on the plates. They were then electropolished and washed. All
20 plates were then returned to the U.S.
The protested entry was liquidated under the provision in
subheading 8477.90.80, HTSUS, for other parts of machinery for
working rubber or plastics or for the manufacture of products
from these materials. This is consistent with HQ 083325, dated
May 1, 1989, in which chromium steel plates used to make
decorative plastic laminate sheet were held to "work" plastics
for purposes of heading 8477. Counsel maintains the provision in
subheading 8442,50.10, HTSUS, for printing plates and other
printing components, represents the correct classification. As
previously stated, counsel now asserts a claim under subheading
9802.00.50, HTSUS.
- 3 -
The provisions under consideration are as follows:
8442 Machinery...for preparing or making printing blocks, plates...or other printing components
8442.50.10 Plates
* * *
8477
8477.90 Parts:
8477.90.80 Other
* * * *
Articles returned to the United States after having been exported to be advanced in value or improved in condition by any process of manufacture or other means:
Articles exported for repairs or alterations:
9802.00.50 Other
ISSUE:
Whether embossing is a type of printing for purposes of
heading 8442; whether the 20 returned press plates are entitled
to a partial duty exemption under subheading 9802.00.50, HTSUS.
LAW AND ANALYSIS:
General Rule of Interpretation (GRI) 1 states, in relevant
part, that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes. Also, the Harmonized Commodity Description and
Coding System Explanatory Notes (ENs) constitute the official
interpretation of the Harmonized System. While not legally
binding, 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). - 4 -
Counsel's claim under subheading 8442.50.10 is that the
involved process is one of embossing which, according to several
dictionaries, is a type of printing. He cites technical
publications to support this conclusion and notes that, among
other things, printing involves making multiple copies of graphic
images. These publications state that printing is not limited to
ink-on-paper, and list embossing as a type of printing used to
impart printed messages. Further, counsel cites heading 84.42
ENs at p. 1335, which list plates and dies for relief stamping or
printing, for example, for machines which emboss, with or without
also inking, letter heads, visiting cards, etc.
Counsel's definition of the term printing as involving the
reproduction of graphic images is quite broad. Graphic images
relate primarily to written or pictorial representations. There
is some doubt, in our opinion, that the plates under protest here
which impart a desired surface texture and gloss to plastic
laminate reproduce true graphic images. Moreover, the cited ENs
indicate that embossing is regarded as a printing operation for
heading 8442 purposes when used with machines that produce letter
heads, visiting cards, etc. Thus, not all embossing operations
involve a recognized printing function. For example, HTS heading
8420 provides for calendering and other rolling machines. These
machines utilize cylinders for a variety of operations, one of
which is embossing. Moreover, the printing machinery of HTS
heading 8443 utilizes the printing type, blocks, plates and
cylinders of heading 8442. To adopt the position that the plates
under protest are printing plates of heading 8442 would require
that we regard flat bed hydraulic presses which utilize these
plates as printing machinery of heading 8443, which is an
unsupportable position. For these reasons, we are unable to
accede to counsel's claim that the plates in issue are provided
for in heading 8442.
Articles returned to the United States after having been
exported to be advanced in value or improved in condition by
repairs or alterations may qualify for the partial duty exemption
under subheading 9802.00.50, HTSUS, provided the foreign
operation does not destroy the identity of the exported articles
or create new or difference articles. Such articles are dutiable
only upon the cost or value of the foreign repairs or alterations
when returned to the U.S., provided the documentation
requirements of section 10.8, Customs Regulations (19 CFR 10.8),
are satisfied.
- 5 -
Repairs are operations aimed at restoring articles to their
original condition, but cannot be so extensive as to destroy the
identity of the exported article or to create a new and different
article. Press Wireless, Inc. v. United States, 6 Cust.Ct. 102,
C.D. 438 (1941). In Press Wireless, radio tubes were sent abroad
for repairs which involved the use of heavier filament than that
used in the original manufacture of the tubes. Also, the
markings on the articles were erased, and new numbers were
substituted to facilitate matching the tubes for use in
transmitters. The court held that the use of improved materials
in the restoration was immaterial as long as the article was not
considered a new and different article of commerce or its
identity was destroyed.
In regard to this case, the reapplication of the "Matte-58"
finish to 7 of the damaged press plates restored these plates to
their original condition. Therefore, we find that the foreign
refinishing of these 7 plates qualifies as an acceptable repair
under subheading 9802.00.50, HTSUS. However, with respect to the
remaining 13 plates, we believe that completely removing the
original finish and converting these plates to an altogether
different finish--the "Artisan-43"--qualifies as neither a repair
nor an alteration under this tariff provision. When returned to
the U.S., these 13 plates are not repaired or altered versions of
the exported plates, but new and commercially different articles.
In our opinion, the manufacturing processes performed abroad to
convert these plates to the new finish effectively destroyed
their original identity. Thus, we find that these 13 plates are
not entitled to the partial duty exemption under subheading
9802.00.50, HTSUS.
With respect to the applicable documentation requirements,
we note that the articles subject to this protest were entered on
April 1, 1994. The documentation requirements of 19 CFR 10.8
were changed by amendments to that section effected by T.D. 94-47, published in the Federal Register on May 17, 1994 (59 FR
25563). As the application of those amendments was effective for
goods entered on or after June 16, 1994, the goods subject to
this protest are subject to the provisions of 19 CFR 10.8 as that
section existed before the changes were made.
The principle change to the documentation requirements of 19
CFR 10.8 effected by T.D. 94-47 was the elimination of the
requirement that a Certificate of Registration on Customs Form
4455 be filed with Customs before exportation of the articles to - 6 -
be repaired or altered abroad. As stated in the T.D., the
purpose of this change was to "eliminate procedural burdens and
delays and duplications of information collection."
At the time of the entry of the subject press plates, 19 CFR
10.8 also required the filing of a declaration from the person
who performed the repairs or alterations as well as a declaration
from the owner or importer. Although the two required
declarations have been prepared and submitted with the protest,
protestant advises that no Certificate of Registration was filed
at the time of exportation of the press plates since, at that
time, there was no intention of claiming subheading 9802.00.50,
HTSUS, treatment for the refinished plates.
However, at the time of the entry of the subject articles,
19 CFR 10.8(k) provided, in pertinent part, as follows:
In any case where an imported article was exported for
repairs or alterations without compliance with the
registration requirements of this section, the district
director, only if satisfied that the returned article is
entitled to entry under subheading 9802.00.40 [and
9802.00.50], HTSUS, may waive the production of the Customs
Form 4455.
Based upon the declarations and other commercial documentation
submitted with the protest, we are satisfied that the 7 press
plates which were refinished with the "Matte-58" finish are
entitled to subheading 9802.00.50, HTSUS, treatment. Therefore,
the requirement of filing the Certificate of Registration is
waived in this case.
HOLDING:
Under the authority of GRI 1, the stainless steel plates
with surface patterns designated Matte-58 and Artisan-43, are
provided for in heading 8477. They are classifiable in
subheading 8477.90.80, HTSUS. The protest should be DENIED as to
the claim under subheading 8442.50.10, HTSUS.
- 7 -
Based upon the information submitted, we find that the 7
press plates which were exported to France and refinished with
the "Matte-58" finish are entitled to the partial duty exemption
under subheading 9802.00.50, HTSUS. However, the conversion of
the remaining 13 plates from the original "Matte-58" finish to a
new "Artisan-43" finish effectively destroyed the original
identity of the plates and created new and commercially different
articles. Therefore, the 13 plates with the "Artisan-43" finish
are not entitled to subheading 9802.00.50, HTSUS, treatment.
Thus, in regard to this issue, the protest should be ALLOWED IN
PART and DENIED IN PART in accordance with this decision.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, you should 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 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