CLA-2 CO:R:C:M 955929 LTO

Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center
Room 761
New York, New York 10048-0945

RE: Protest 1001-93-104236; Thermo Sealing Machines; chapter 84, note 2; EN 84.20; EN 85.15; NY 865382

Dear District Director:

The following is our decision regarding Protest 1001-93- 104236, which concerns the classification of three Thermo Sealing Machines (GBC 8300 and 9400 System Billhofer) under the Harmonized Tariff Schedule of the United States (HTSUS). The subject merchandise was entered on August 28, 1992, and the entry was liquidated on April 2, 1993. The protest was timely filed on June 30, 1993.

FACTS: The articles in question are Thermo Sealing Machines, which are used to laminate clear plastic film to printed paper sheets, such as maps and book covers. The plastic film serves mainly to protect the paper, although it may also provide the paper with a glossy surface to enhance the printing. As imported, the machines consist of a paper sheet feeder, plastic film unwinding roller, film laminating rollers, film slitter and a control panel. In addition, a hot water boiler is purchased domestically and assembled to the machine at the customer's plant.

In operation, the pre-printed paper sheets are manually stacked onto the sheet feeder and a continuous roll of film, one side of which is coated with a heat-sensitive adhesive, is placed on the film unwinder. Suction grippers pull individual sheets from the pile in such a manner that the end of one sheet slightly overlaps the beginning of the next sheet. The stream of sheets - 2 -

thus formed is simultaneously fed, along with the film, to the laminating rollers. The laminating rollers consist of a chrome roller and rubber-covered counter pressure roller. The chrome roller is heated to a temperature of approximately 90 degrees Centigrade by hot water from the boiler which is circulated into the roller. This heat, along with the pressure generated by the two rollers, causes the adhesive to melt and applies the film to the paper web. The film is slit by means of a rotating cutter, and suction grippers pull the laminated sheets apart and form them into a pile at the end of the machine. The machines were entered under subheading 8439.30.00, HTSUS, which provides for machinery for finishing paper or paperboard. However, the protestant now claims that they are classifiable under subheading 8515.80.00, HTSUS, which provides for other electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus, whether or not capable of cutting. The machines were classified upon liquidation under subheading 8420.10.90, HTSUS, which provides for other calendering or rolling machines.

ISSUE:

Whether the Thermo Sealing Machines are classifiable as other electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus, whether or not capable of cutting, under subheading 8515.80.00, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The subheadings at issue are as follows:

8420 Calendering or other rolling machines, other than for metals or glass, and cylinders therefor; parts thereof: Calendering or other rolling machines: 8420.10.90 Other (3.7% ad valorem)

* * * * * * * * * * * * *

8439 Machinery for making pulp of fibrous cellulosic material or for making or finishing - 3 -

paper or paperboard (other than the machinery of heading 8419); parts thereof: 8439.30.00 Machinery for finishing paper or paperboard (2%) * * * * * * * * * * * * *

8515 Electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus, whether or not capable of cutting; . . . parts thereof: 8515.80.00 Other machines and apparatus (2%)

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 85.15, pg. 1356, indicates that the machines for welding thermoplastic materials encompassed by heading 8515, HTSUS, utilize either an electrically heated gas, electrically heated elements or a high frequency alternating field to join plastic surfaces together. The Thermo Sealing Machines do not utilize any one of these three methods, nor do they join two sheets of plastic together. Rather, they apply a plastic film to a sheet of paper. Accordingly, these machines are not covered by heading 8515, HTSUS. NY 865382, dated August 2, 1991, cited by the protestant, is inapplicable to the case at hand. In that ruling, a device which used an electric filament to heat seal small documents within plastic sleeves was held to be classifiable as an electric welding machine or apparatus under subheading 8515.80.00, HTSUS.

EN 84.20, pgs. 1178-9, describes the calendering machines of heading 8420, HTSUS, as follows:

These machines consist essentially of two or more parallel cylinders or rollers revolving with their surfaces in more or less close contact so as to perform the following operations, either by pressure of the cylinders alone or by pressure combined with friction, heat or moisture:

. . . (3) The application of dressings or surface coatings. - 4 -

The Thermo Sealing Machines utilize pressure and heat generated by two parallel rollers to apply a film coating to the surface of a paper sheet. Moreover, the heated chrome roller, which along with the other laminating roller causes the adhesive to melt and applies the film to the paper web, is referred to in the operating manuals and commercial invoice as a calendering roller.

EN 84.20, pg. 1179, further states that "calendering machines which merely incorporate auxiliary appliances, such as impregnating baths or rollers, winding or cutting devices, remain in this heading." While the machines also perform film unwinding and cutting operations, prior to and after the calendering of the plastic film to the paper, they are the type of auxiliary operations mentioned in EN 84.20. Therefore, it is our opinion that the Thermo Sealing Machines are classifiable under subheading 8420.10.90, HTSUS.

With regard to the protestant's original claim that the machines were classifiable under subheading 8439.30.00, HTSUS, note 2 to chapter 84 provides, in part, as follows:

Subject to the operation of note 3 to section XVI, a machine or appliance which answers to a description in one or more of the headings 8401 to 8424 and at the same time to a description in one or more of the headings 8425 to 8480 is to be classified under the appropriate heading of the former group and not the latter.

According to this note, the Thermo Sealing Machines would be classifiable under heading 8420, HTSUS, even if they were also prima facie classifiable under heading 8439, HTSUS. Therefore, it is unnecessary to make this determination.

HOLDING:

The Thermo Sealing Machines (GBC Models 8300 and 9400) are classifiable under subheading 8420.10.90, HTSUS, which provides for other calendering or rolling machines.

The protest should be DENIED. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of 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 - 5 -

personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division