Protests 4101-02-100335, semiautomatic precision layer respooling machine; 4101-02-100336, vertical left and right machines; 4101-02-100337, pail packer machine; 4101-02-100355, semiautomatic precision layer respooling machine; 4101-02-100356, coating tanks for welded wires

HQ 966109 November 24, 2003 CLA-2 RR:CR:GC 966109 AML CATEGORY: Classification TARIFF Nos.: 8422.30.90; 8422.90.90; 8479.81.00; 8479.89.97; 8483.50.90 Port Director U.S. Customs and Border Protection 56 Erieview Plaza Cleveland, OH 44114 RE: Protests 4101-02-100335, semiautomatic precision layer respooling machine; 4101-02-100336, vertical left and right machines; 4101-02-100337, pail packer machine; 4101-02-100355, semiautomatic precision layer respooling machine; 4101-02-100356, coating tanks for welded wires Dear Port Director: The following is our decision regarding protests 4101-02-100335, 4101-02-100336, 4101-02-100337, 4101-02-100355 and 4101-02-100356, all of which are dated June 20, 2002, filed by counsel on behalf of ITW Hobart Brothers Company, against your classification of “semiautomatic precision layer respooling,” “vertical left and right” and “pail packer” machines, as well as coating tanks and parts therefor, respectively, under the Harmonized Tariff Schedule of the United States (“HTSUS”). Copies of electronic images and technical literature were provided for our consideration. FACTS: Counsel for the protestant describes the component machines at issue in terms of their respective functions and roles in the production process. We paraphrase those descriptions as follows: The subject merchandise forms part of new manufacturing lines for the production of copper coated welding wire. The protestant purchases wire rod which has been chemically descaled. Prior to drawing, the rod is coated with a sodium-based powder that serves as a lubricant during drawing. Following the drawing process, the wire passes though a series of brushing units and through a first rinse. From there, the wire passes through a degreasing tank, which utilizes an alkaline bath to remove the lubricating agents to ensure that the wire has a pH level of neutral. The wire is then passed through a tank that coats the wire with copper. The coated wire is then subjected to a final rinse. The coated wire is then coiled into 2000-pound reels at the end of the production line. The reels are then moved to either the precision wire respooling machine that rewinds the copper-coated welding wire onto spools that are then packaged for shipment to customers. Those spools typically weigh 30, 45 or 60 pounds. Or, in order to package larger quantities of the finished product, the protestant uses a separate device called a “pail packer.” The pail packer is a “stand alone” machine designed and used to wind coils of the finished product into the cardboard drums as described in the paragraph immediately above. In that case, the 2000-pound reels are moved to the pail packer which automatically coils the product inside cardboard drums. The drums typically hold 600 or 1000 pounds of finished product. In sum, the system of machines, which is imported in 13 separate shipments, physically and chemically draws, cleans, rinses and coats imported wire to create the copper coated welding wire. The articles were entered separately on July 31, 2001 (entry number xxx-xxxx230-0, subject of protest 4101-02-100335), April 9, 2001 (entry number xxx-xxxx722-7, subject of protest 4101-02-100336), March 30, 2001 (entry number xxx-xxxx672-4, subject of protest 4101-02-100337), January 22, 2002 (entry number xxx-xxxx712-9, subject of protest 4101-02-100355) and January 8, 2002 (entry number xxx-xxxx532-2, subject of protest 4101-02-100356) and all of the entries were liquidated (although entered by a customs broker for the protestant under heading 8479, HTSUS, Customs and Border Protection (“CBP”), following issuance of and replies to Customs Form (“CF”) 28s, rate advanced the articles under heading 8463, HTSUS) on March 22, 2002, with classification of the various articles as follows: The “semi-automatic precision layer respooling” machines, subject of protests 4101-02-100335 and -100355, were classified under subheading 8463.30.00, HTSUS, which provides for, among other things, machines for working wire. The parts therefor were classified under subheading 8466.94.85, HTSUS, which provides for parts of machines classified under heading 8463. These protests were filed on June 20, 2002. In regard to the classification of these articles, counsel for protestant states that proper classification of the subject merchandise requires consideration of the function or purpose of the merchandise in question. The function of the respooling machines is to wind the finished welding wire onto spools, not “working” the wire into some other commodity. Because the purpose of the respooling machines is to coil or spool the finished product, counsel avers that the articles are classifiable under heading 8479, HTSUS, rather than heading 8463, HTSUS, as liquidated. The “vertical left and right” machines, subject of protest 4101-02-100336, were classified under subheading 8463.30.00, HTSUS, which provides for, among other things, machines for working wire. This protest was filed on June 20, 2002. Information gleaned from the response to the CF 28 concerning these articles and the attachments to the CF 19s concerning the other protests indicates that the “vertical left and right” machines are designed to draw and clean the wire as part of the overall manufacturing process. The “left” and “right” designations indicate from which side of the operator the wire is pulled. Following importation, the articles are configured such that an operator can stand between and monitor their function in a “mirror” image. The “pail packers and parts,” subject of protest 4101-02-100337, were classified under subheading 8463.30.00, HTSUS, which provides for, among other things, machines for working wire. The parts therefor were classified under subheading 8466.94.85, HTSUS, which provides for parts of machines classified under heading 8463. This protest was filed on June 20, 2002. Counsel for the protestant states that the pail packers and the parts therefor are ancillary packing equipment that is employed at the end of the manufacturing process (described above). The finished product, which has been stored on reels weighing approximately 2000 pounds, is “dereeled” into cardboard drums in either 600 or 1000 pound quantities. The “cleaning tanks,” “electrolytic degreasing and rinsing tanks,” “copper coating tanks for welded wires,” and control equipment, subject of protests 4101-02-100336 and 4101-02-100356, were classified under subheading 8463.30.00, HTSUS, which provides for, among other things, machines for working wire. These protests were filed on June 20, 2002. Counsel for the protestant states that the machines are used to remove the lubricating powder, degrease and clean the drawn wire, and apply the copper coating to finish the welding wire. Counsel states that the first tank utilizes brushes and immersion in an alkaline bath to cleanse the wire. The wire is then passed through a second immersion to ensure the proper pH level. Each tank is followed by a rinsing unit to wash away any remaining material. The wire is then passed through a third tank that coats the wire with copper. Finally, the wire is subjected to a final rinse, after which the wire is coiled onto the 2000-pound rolls. ISSUE: Whether the semi-automatic precision layer respooling machine, vertical left and right machine, pail packer and parts therefor, and the coating tanks for welded wire are classifiable as machines for working wire under heading 8463, HTSUS, or as other machines and mechanical appliances having individual functions, not specified or included elsewhere (in Chapter 84), under heading 8479, HTSUS; and, depending on the classification of the pail packer, what is the proper classification for its parts? LAW and ANALYSIS: Initially we note that the protests were timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matters protested are protestable (see 19 U.S.C. 1514 (a)(2) and (5)). We are cognizant that Customs and Border Protection (“CBP”) has proposed regulations that would allow separate importations to be treated as a single importation for classification purposes under certain circumstances (see the Federal Register of April 8, 2002, 67 Fed. Reg. 16664). However, such regulations were proposed approximately one year after the importations at issue were made; the proposed regulations are not yet final. Further, counsel for the protestant has not requested such treatment as required by the proposed regulations. Thus, there is no legal basis for combining the thirteen shipments for classification purposes, and the shipments must be considered separately and the subject articles classified according to their condition as imported. 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 on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law. The 2001 HTSUS (see 19 USC § 1202) 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: 8422.30.90 Other: 8422.90 Parts: 8422.90.90 Other. * * * 8463 Other machine tools for working metal or cermets, without removing material: 8463.30.00 Machines for working wire. * * * 8466 Parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine tools; tool holders for any type of tool for working in the hand: 8466.94 For machines of heading 8462 or 8463: Cast-iron parts not advanced beyond cleaning, and machined only for the removal of fins, gates, sprues and risers or to permit location in finishing machinery: 8466.94.85 Other. * * * 8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: 8479.81.00 For treating metal, including electric wire coil-winders: 8479.89 Other: Other: 8479.89.97 Other. * * * 8483 Transmission shafts (including camshafts and crankshafts) and cranks; bearing housings, housed bearings and plain shaft bearings; gears and gearing; ball or roller screws; gear boxes and other speed changers, including torque converters; flywheels and pulleys, including pulley blocks; clutches and shaft couplings (including universal joints); parts thereof: 8483.50 Flywheels and pulleys, including pulley blocks: Other: 8483.50.90 Other. Heading 8479, HTSUS, is a so-called "basket" provision within Chapter 84. Such headings are those in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21, 1988)). Therefore, we are first addressing the competing provisions within Chapter 84, as well as heading 8463, HTSUS, under which the various articles were classified upon liquidation. Only if the various the various machines are not classified in previous headings within Chapter 84 will they fall to be classified under heading 8479, HTSUS. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, 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. Customs believes the ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). All of the articles are prima facie classifiable in Chapter 84, which provides for, inter alia, machinery and mechanical equipment and parts thereof. Section XVI (in which Chapter 84 is found), note 2, HTSUS, states that: [s]ubject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: (a) Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8485 and 8548) are in all cases to be classified in their respective headings; (b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517; (c) All other parts are to be classified in heading 8485 or 8548. Subject to certain exceptions not relevant here, goods that are identifiable parts of machines or apparatus of Chapter 84 are classifiable in accordance with Section XVI, Note 2, HTSUS. Nidec Corporation v. United States, 861 F. Supp. 136, aff'd, 68 F. 3d 1333 (1995). Parts, which are goods included in any of the headings of Chapter 84, are in all cases to be classified in their respective headings. See Note 2(a). Other parts, if suitable for use solely or principally with a particular machine, or with a number of machines of the same heading, are to be classified with the machines of that kind. See Note 2(b), above. “Where a particular part of an article is provided for specifically, a part of that particular part is more specifically provided for as part of the part than as part of the whole.” Sturm, Ruth; Customs Law & Administration, 3rd Edition, section 54.9, p. 57 (citing C.F. Liebert v. United States, 60 Cust. Ct. 677, C.D. 3499, 287 F. Supp. 1008 (1968); Foster Wheeler Corp. v. United States, 61 Cust. Ct. 166, C.D. 3556, 290 F. Supp. 375 (1968); and Korody-Colyer Corp. v. United States, 66 Cust. Ct. 337, C.D. 4212 (1971)). Legal Note 4 to section XVI provides that: Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function. The General ENs to Chapter 84 provide, in pertinent part, that: * * * (3) Headings 84.25 to 84.78 cover machines and apparatus which, with certain exceptions, are classified there by reference to the field of industry in which they are used, regardless of their particular function in that field. (4) Heading 84.79 covers machines and mechanical appliances not covered by any preceding heading of the Chapter. * * * The General ENs to Chapter 84 continue, under subheading (D) “GOODS COVERED BY TWO OR MORE HEADINGS IN THE CHAPTER” and provide, in pertinent part, that: Machines which fall in two or more headings, none of which is within headings 84.01 to 84.24, are classified in that heading which provides the most specific description of the goods, or according to the principal use of the machine. Multi-purpose machines which are used equally for a number of different purposes or industries (e.g., eyeletting machines used equally well in the paper, textile, leather, plastics, etc., industries) are classified in heading 84.79. In Headquarters Ruling Letter (“HQ”) 087746, dated August 21, 1990, we noted that: The . . . machines in question, in order to be classified in either heading 8463, HTSUSA, or heading 8465, HTSUSA, must first be "machine tools". The language of the HTSUSA does not provide a definition of the term "machine tool", as did the previous tariff, the Tariff Schedules of the United States ("TSUS"). * * * The Explanatory Notes provide a more expansive definition for "machine tool" than was found in the TSUS. These notes state that a machine tool is a power-driven machine, but similar machines worked by hand or pedal are also considered machine tools. See Explanatory Note 84.59, Harmonized Commodity Description and Coding System ("HCDCS") Vol., 3, p. 1272, Explanatory Note 84.60, HCDCS, Vol. 3, p. 1275; Explanatory Note 84.61, HCDCS, Vol. 3, p. 1276; Explanatory Note 84.62, HCDCS, Vol. 3, p. 1279; Explanatory Note 84.63, HCDCS, Vol. 3, p. 1281; Explanatory Note 84.64, HCDCS, Vol. 3, p. 1282; Explanatory Note 84.65, Vol. 3, p. 1284. Similarly, in HQ 955395, dated February 14, 1994, we noted that: The term "machine tool" is not defined either in the text of the HTSUS or in the ENs. The term was, however, defined under the TSUS, in part, to include "...any machine used for shaping or surface-working metals...whether by cutting away or otherwise removing the material or by changing its shape or form without removing any of it..." Schedule 6, Part 4, Subpart F, Headnote 1(a), TSUS. Prior judicial decisions involving nomenclature under the TSUS are not to be considered dispositive in interpreting equivalent provisions under the HTSUS. However, on a case-by-case basis, such decisions should be considered instructive, particularly where the nomenclature remains unchanged and no contrary legislative intent is evidenced. In Pitney-Bowes, Inc. v. United States, C.D. 3116 (1967), the court examined headnote 1(a) in the context of certain embossing machines which changed the surface of metal plates by displacement without removing any metal. The court observed that from the sources used by the Tariff Commission in drafting headnote 1(a) it was clear there was no intention to take in all machines which in any way change the shape or form of metal regardless of their capability of shaping or surface-working, as those terms are understood in the field, or of producing other machines or of their being industrial equipment regarded by those in the field as machine tools. . . In a case holding that machines for compressing metal scrap were not machine tools under the Tariff Act of 1930, the court cited with approval a line of cases in which certain devices held to be machine tools all performed "a task of fabrication or manufacture or production" of an article. Kurt Orban Co., Inc. v. United States, C.D. 2041, aff'd. C.A.D. 724 (1959). . . From the cited court cases, it appears that machines that do not work metal by a process of fabrication, manufacture or improvement toward an intended end use would not have been regarded as "machine tools" under the TSUS. This conclusion, buttressed by the cited trade sources, makes it reasonable to conclude that such machines are not to be regarded as true machine tools under the HTSUS. * * * The ENs to heading 8463, HTSUS, provide, in pertinent part, that: This heading includes: * * * (3) Machines for