Shirring machines; EN 84.22; EN 84.77; NY D81461 reconsidered

HQ 962276 April 29, 1999 CLA-2:RR:CR:GC 962276:AML CATEGORY: Classification TARIFF NO.: 8477.80.00 Mr. Alan Goggins Barnes, Richardson & Colburn 475 Park Avenue South New York, New York 10016 RE: Shirring machines; EN 84.22; EN 84.77; NY D81461 reconsidered Dear Mr. Goggins: This is in response to your letter of October 9, 1998, on behalf of Viscofan USA, Inc., requesting reconsideration of New York Ruling Letter (NY) D81461, dated September 15, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a shirring machine. NY D81461 classified the article in subheading 8477.80.00, HTSUS, as other machinery for working rubber or plastics. Photocopies were provided for examination. In preparation of this ruling, consideration was given to arguments presented by counsel at a meeting at Customs Headquarters on March 24, 1999, and the supplemental submission dated April 22, 1999. FACTS: Shirring machines are used to fold continuous lengths of extruded cellulose sausage casing in an accordion-like manner. The cellulose casing is comprised of inedible plastic. In the shirring process the tubular-shaped casing is pulled from a reel by feed rollers, opened and pleated on a mandrel, measured, cut, compressed and ejected. The ejected casing consists of a “slug” or strand nine inches long containing approximately 110 to 225 linear feet of casing. The “slugs” are then packaged for storage and shipment. After shipment, the casing is unfolded and stuffed with sausage or other meats. ISSUE: Whether a shirring machine is classified as other packing or wrapping machinery in subheading 8422.40.90, HTSUS, or as other machinery for working rubber or plastics in subheading 8477.80.00, HTSUS? LAW and ANALYSIS: Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRI’s). GRI 1, HTSUS, 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[.]” The headings 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 heatshrink wrapping machinery); machinery for aerating beverages; parts thereof: 8422.40 Other packing or wrapping machinery (including heatshrink wrapping machinery): 8422.40.90 Other. * * * * * * * * * * * 8477 Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this chapter; parts thereof: 8477.80.00 Other machinery. Note 2 to Chapter 84, HTSUS, provides, in part: 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. Therefore, if the machine is described by heading 8422, it cannot be classified in heading 8477. When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The guidance of the ENs is necessary in the instant analysis. EN 84.22, pp. 1283-1284, provides in pertinent part: This heading covers . . . machines . . . generally, for packing (including heatshrink wrapping) goods for sale, transport or storage. These include: * * * (5) Wrapping or cartoning machines, including those with provision for forming, printing, tying, stapling, taping, glueing, closing or otherwise finishing the packing. The heading includes machines for packing filled cans or bottles into external containers (crates, boxes, etc.). * * * (7) Baling or banding machines, including handoperated portable appliances, provided with plates or similar devices enabling them to be rested, while in use, on the bales, cases or other packages to be strapped. * * * The heading does not, however, cover machines whose primary function is not to pack, wrap, etc., but to manufacture raw or semifinished materials into finished products (e.g., combined cigarette making and packaging machines). The shirring machines cannot be said to perform any of the functions described by EN 84.22. They do not “wrap” or “carton”, they do not pack containers into external containers, and they do not “bale” or “band”. Shirring transforms the casing from a flat, unwieldy, hose-like length to a size ready for the end user’s production. The “slugs” which are produced by the shirring process require neither band nor wrap to maintain the compact size. This compact size is necessary for the use of the casing, to be stuffed with sausage or other meat. Thus, we conclude that the shirring process constitutes the final stage of the manufacture and production process, which occurs prior to packaging for storage and shipment. Therefore, the shirring machine is not described in heading 8422, HTSUS. EN 84.77, pp.1420-1421, provides in pertinent part: The heading covers machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this Chapter. This heading includes: * * * (4) Forming presses for rubber or plastics. Heading 8477, by the plain and ordinary meaning of its terms, in conjunction with the examples provided in and the rationale of the ENs, is intended to include machinery “not specified or included elsewhere in this Chapter.” The shirring machine, which compresses and folds the cellulose casing into a “slug” ready for the end-user, is not specified or included in heading 8422 (see above). The shirring machines, which change the existing condition of the cellulose casing from extruded lengths of tubing to manageable slugs ready for packing are machines for forming plastics. Therefore, the shirring machines are classified in heading 8477. This determination acknowledges the definition of the term “further worked” which was discussed at length by the United States Court of International Trade in Winter-Wolff, Inc., v. United States, 996 F. Supp.1258, 1264 (1998). There, the CIT determined, based upon common meaning gleaned from dictionary definitions, that the definition of “further worked”, for purposes of classification within the HTSUS, “amounts to the following: to form, fashion, or shape an existing product to a greater extent.” Id. The cellulose casing - an existing product - is formed and shaped to a greater extent by the shirring machine, a machine which works the plastic/cellulose material of the casings. HOLDING: The shirring machine is classifiable under subheading 8477.80.00, HTSUS, as machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this chapter; parts thereof, other. EFFECT ON OTHER RULINGS: NY D81461 is affirmed. Sincerely, John Durant, Director Commercial Rulings Division