HQ 0088950 - Protest and Request for Further Review 3901-90-00042, dated January 23, 1990; inked film ribbon; thermal transfer ribbon; typewriter and other similar ribbon; impression - United States International Trade Commision Rulings

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HQ 088950

Jul 1, 1991

CLA-2 CO:R:C:M 088950 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9612.10.90

District Director
U.S. Customs Service
610 South Canal Street
Suite 217
Chicago, IL 60607

RE: Protest and Request for Further Review 3901-90-00042, dated January 23, 1990; inked film ribbon; thermal transfer ribbon; typewriter and other similar ribbon; impression

Dear Sir:

This is in response to Protest and Request for Further Review 3901-90-00042, dated January 23, 1990, regarding certain thermal transfer ribbons imported by Zebra Technologies Corporation from Japan. Our decision follows.

FACTS:

The articles in question are thermal transfer ribbons imported from Japan. The ribbons consist of a base film made of Toray Rumillor 6C-F53 polyester. The polyester film weighs 8.0 grams per square meter and is 5.7 microns thick. The base film is coated with either black, blue or red ink. The ink is not a typical ink, but consists of waxes, resins and pigments and has a melting point of 75 degrees Celsius. The ribbon is 9.7 microns thick after the base film is coated with ink.

Once the ribbons are coated, a lead tape is attached with adhesive to the ribbon, as is an end-sensing piece of polyester film that is coated with aluminum. The end-sensing piece notifies the printer that the ribbon has reached its end and prevents damage to the printer and waste of the print stock used with the printer. The end-sensing part of the ribbon is then attached to a paper board ribbon core and the entire assembly is rolled onto the core. Each roll of the ribbon, regardless of width, is 300 meters long. The ribbons are available in widths of 40, 60, 80, 110, 130, and 220 millimeters.

The importer states that these thermal transfer ribbons are used exclusively with Zebra Thermal Transfer Demand Printers

Models Z-130 and Z-220. These printers are only operable when connected to a personal, mini or main frame computer which will provide the commands which operate the printer. The computer also provides the information which is transferred to the paper stock.

The Zebra printers create an image by running the non-inked side of the ribbon so that it comes into contact with the printer's thermal printhead. Simultaneously, the inked side of the ribbon contacts the paper stock. The printhead consists of numerous geometric facets which are capable of being individually heated by the printer's internal programming. The printer receives signals from the computer, converts the computer signals to electrical signals which heat the printhead in the correct locations to transfer the programmed image to the paper stock. This transfer occurs by the heat on the printhead causing the ink to melt. The images printed are formed from dots which are 125 125 mm2. The resolution of the printers is 8 dots per millimeter.

The importer entered the thermal transfer ribbons in subheading 8473.30.40, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") as "Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of 8469 to 8472...Parts and accessories of the machines of heading 8471...Not incorporating a cathode ray tube..." Your office classified the ribbons in subheadings 9612.10.90 and 9612.10.10, HTSUSA, as "Typewriter or similar ribbons, inked or otherwise prepared for giving impressions, whether or not on spools or in cartridges... Ribbons..." The eight digit classification is dependent upon the width of the ribbons.

ISSUE:

Whether the thermal transfer ribbons are parts and accessories of automatic data processing units under heading 8473, HTSUSA, or typewriter or similar ribbons under heading 9612, HTSUSA.

LAW AND ANALYSIS:

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1, HTSUSA, 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 in contention are headings 8473 and 9612. These headings describe the following:

8473 Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of 8469 to 8472...

9612 Typewriter or similar ribbons, inked or otherwise prepared for giving impressions, whether or not on spools or in cartridges...

The only relevant section or chapter note is Section XVI, Note 2, HTSUSA. Section XVI, Note 2 describes how the parts of the machines classified within in Section XVI are to be classified. This note states the following:

Subject to note 1 of this section, note 1 to chapter 84 and to note 1 of chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8546 or 8547) are to be classified according to the following rules:

(a) Parts which are goods included in any headings of chapter 84 and 85 (other than heading 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...are to be classified with the machines of that kind...;

(c) All other parts are to be classified in heading 8485 or 8548.

The subject ribbons are not described by any of the headings of chapters 84 or 85 in accordance with Section XVI, Note 2(a). Since the ribbons cannot be classified according to Section XVI, Note 2(a), we must consider Section XVI, Note 2(b). There is no dispute that the subject ribbons are used solely or principally with printers which are classified under heading 8471, HTSUSA, as "Automatic data processing machines and units thereof..." Thus, according to Section XVI, Note 2(b), since the ribbons are solely or principally used with machines of heading 8471, then the ribbons are to be classified as parts of those printer units. Thus, the thermal transfer ribbons are described by heading 8473.

Since it is possible for an article to be classifiable in more than one heading, heading 9612 must be examined. To better
understand the language of heading 9612 the Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, should be used to determine the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note 96.12 states in part the following:

This heading covers the following:

Ribbons, whether or not on spool or in cartridges, for typewriters, calculating machines, or for any other machines incorporating a device for printing by means of such ribbons (automatic balances, tabulating machines, teleprinters, etc.)...

These ribbons are usually of woven textiles, but sometimes they are made of plastics or paper. To fall in the heading they must have been inked or otherwise prepared to give impressions (e.g. impregnation of textile ribbons, or coating of plastics strip or paper with colouring matter, ink, etc.) (original emphasis) Vol. 4, Harmonized Commodity Description and Coding System ("HCDCS"), p. 1609.

The importer places great weight on the exemplars in the Explanatory Notes to establish that thermal printers and the ribbons used with such printers were not contemplated for classification under heading 9612. This office disagrees. Heading 9612 includes "ribbons...for any other machines incorporating a device for printing by means of such ribbons...', The thermal transfer ribbons are used by machines which print an image through the use of the thermal transfer ribbons.

The importer believes that the printers in question do not "print." We agree that the thermal transfer process is not the traditional method of printing. Printing generally involves some type of pressure being placed on the ribbon so as to transfer an image onto stock paper. However, printing may also mean "to fix or impress, as a stamp, mark, character, idea, etc. into or something or someone." Gane Bros. & Co. of N.Y. v. United States, 55 Cust. Ct. 311; C.D. 2596 (December 6, 1965), citing Bluefries New York, Inc. and Amsterdam Continental Types & Graphic Equipment, Inc. v. United States, 38 Cust. Ct. 461, Abstract 60627. The fixing or impressing of an idea does not necessarily involve physical pressure. Furthermore, Webster' II New Riverside University Dictionary includes "a photographic image transferred to paper or a similar surface, usually from a negative" as part of its definition of "print." Webster's II New Riverside University Dictionary, p. 935 (1984). Such a transference from a negative to paper does not involve the use of pressure. Therefore, we must conclude that thermal transfer ribbons print an image.

The ribbons of heading 9612 must be "inked or otherwise prepared for giving impressions." The thermal transfer ribbons in question are "inked or otherwise prepared." The polyester film is coated with a blend of waxes, resins and pigments that will create an image on paper when melted. We do not need to determine whether this coating is "ink", for it is at least an other preparation included in this heading.

Another contention by the importer is that the thermal transfer ribbons do not create "impressions" as required by heading 9612. It is argued that to make an impression, pressure must be utilized and in the thermal transfer process no pressure is used. It is true that a typewriter creates an image by the use of pressure by keys onto a ribbon, and that the thermal printhead of the Zebra printers does not touch the thermal transfer ribbon. However, the two types of printing have their similarities. A typewriter key will only print an image where a key touches the paper, and the image will reflect the key's design. The image created by a typewriter is created by the use of directed force placed on a ribbon by a key to transfer the image onto paper.

Similarly, the thermal transfer ribbon utilizes the placement of heat to create an image. Although heat is not a phenomenon capable of being viewed as is the typewriter key, the heat nevertheless is a force placed onto the ribbon to create an image. The heat is directed exactly onto the ribbon to create the programmed image. It is the opinion of this office that the image transferred to the paper stock is an impression. The thermal transfer ribbon is otherwise prepared for giving impressions.

Finally, the importer contends that the Explanatory Notes indicate that heading 9612 does not encompass ribbons as wide as the thermal transfer ribbons in question. Heading 9612 excludes, according to Explanatory Note 96.12, rolls of carbon or other copying paper strip that are not suitable for use as typewriter or other similar ribbon, but are used to produce duplicate copies. The Explanatory Note indicates that such duplicating rolls or strips are generally wider then 3cm. See Vol. 4, HCDCS, p. 1610. However, these articles which are excluded from heading 9612 are ribbons or strips which are used to make copies or duplicate images. The thermal ribbon in question is used to make originals, not duplicates, and thus, is not excluded by this note. It is the opinion of this office that the ribbons in question meet the terms of heading 9612, and therefore, may be classified under heading 9612.

Since both headings 8473 and 9612 describe the thermal transfer ribbons, GRI 3, HTSUSA, is implemented. GRI 3 applies when two or more headings describe an article. GRI 3(a), HTSUSA,
requires that when two or more headings describe an article, the most specific heading "shall be preferred." Headings which specifically describe a type of article ate always deemed to be more specific than headings which describe "parts." Therefore, heading 9612 which describes ribbons is more specific than heading 8473 which describes parts and accessories. The thermal transfer ribbons are properly described by heading 9612. The appropriate classification for the thermal transfer ribbons is subheading 9612.10.90, HTSUSA, as "Typewriter or similar ribbons, inked or otherwise prepared for giving impressions, whether or not on spools or in cartridges...Ribbons...Other..." None of the imported ribbons are less than 30mm in width.

The importer believe that Kores Manufacturing Corp. v. United States, 3 CIT 178, 545 F. Supp 1303 (1982), aff'd 4 ITRD 1866 (CAFC 1983) is relevant to the present situation. In Kores Manufacturing Corp, ribbons for automatic data processing printers were found to be parts of office machines and not textile materials. This case was resolved under the prior Tariff Schedules of the United States ("TSUS"). We do not find this case to be persuasive. Heading 9612 is a new provision and had no equivalent provision in the TSUS. Where the language of the tariffs are substantially different this office is not bound by prior rulings and case law. See House Conference Report 100-576 to Pub. L. 100-418, p. 1582-1583.

HOLDING:

The thermal transfer ribbons imported from Japan are both parts and accessories of automatic data processing units under heading 8473 and other similar ribbons under heading 9612, in accordance with GRI 1. Under GRI 3, heading 9612 is the most specific heading. Therefore, the thermal transfer ribbons are properly classified under heading 9612. The appropriate classification for the thermal transfer ribbons is subheading 9612.10.90, HTSUSA, as "Typewriter or similar ribbons, inked or otherwise prepared for giving impressions, whether or not on spools or in cartridges...Ribbons...Other..."

The protest should be denied in full. A copy of this decision should be forwarded with the Form 19 Notice of Action of the protest.

Sincerely,

John Durant, Director

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