HQ 0955566 - PRD 0401-93-100083; Fine Plasma Cutting Machine, Welding Machine; Machine-Tool for Surface-Working Materials by Plasma Arc Process, Heading 8456; Plasma Arc Welding, Welding Machine Capable of Cutting, Heading 8515; Functional Unit, Section XVI, Note 4, HTSUS - United States International Trade Commision Rulings

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HQ 955566

APRIL 20, 1994

CLA-2:CO:R:C:M 955566 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8456.90.10

District Director of Customs
10 Causeway St., Suite 603
Boston, MA 02222-1059

RE: PRD 0401-93-100083; Fine Plasma Cutting Machine, Welding Machine; Machine-Tool for Surface-Working Materials by Plasma Arc Process, Heading 8456; Plasma Arc Welding, Welding Machine Capable of Cutting, Heading 8515; Functional Unit, Section XVI, Note 4, HTSUS

Dear Sir:

This is our decision on Protest No. 0401-93-100083, filed by counsel on behalf of Komatsu-Cybermation, Inc., against your action in classifying certain fine plasma cutting machines from Japan. The entries under protest were liquidated on November 13 and November 27, 1992, and this protest timely filed on February 11, 1993.

FACTS:

The machines in question are the Fine Plasma G940 and G990. These machines consist of the following components: a unit that supplies both power and oxygen to the cutting torch, a junction box referred to as a high frequency generator, plasma torch, cables for connecting these components, plus nozzles and tungsten electrodes to be fitted to the end of the torch. These machines are said to be capable of performing three distinct functions; they can weld and spot weld using one torch and cut using another torch. In operation, when the supply unit is activated a high frequency voltage is generated between the electrode and the nozzle. Simultaneously, oxygen gas is supplied to the torch where it is ionized to form a plasma. As the pilot arc reaches the work the main arc is ignited. It is this plasma arc that either welds or cuts the material. The cutting function is accomplished by a torch with a small hole that produces a narrow arc. In its welding mode, a torch with a larger hole that produces a wider arc is utilized. A controller is added after importation when the machine is mounted on a table. - 2 -

The models G940 and G990 are to be combined, after importation, with a cutting table and integrated CAM workstation and related software, into what protestant describes as the RASOR Cutting System.

The machines were entered under the provision for machines and apparatus for arc welding of metals, in subheading 8515.30.00, Harmonized Tariff Schedule of the United States (HTSUS). The concerned import specialist determined that the machines were designed exclusively for cutting, and liquidated the entries under the provision for machine tools for working metal by removal of material, by plasma arc process, in subheading 8456.90.10, HTSUS.

The provisions under considerations are as follows:

8456 Machine tools for working any material by removal of material, by laser or other light or photon beam, ultrasonic, electro- discharge, electro-chemical, electron-beam, ionic-beam or plasma arc processes:

8456.90 Other:

8456.90.10 For working metal...4.4 percent

8515 Electric, 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:

Machines and apparatus for arc (including plasma arc) welding of metals:

8515.31.00 Fully or partly automatic...2 percent

8515.39.00 Other...2 percent

ISSUE:

Whether a plasma arc welding machine that, in its condition as imported, is capable only of cutting, is a machine of heading 8515.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part - 3 -
that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's 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 under the System. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Protestant maintains that the models G 940 and G 990 are multi-functional machines and are not designed exclusively for cutting. Whether they can weld or cut is determined by the torch, hose, and a controller; it is the controller that regulates the flow of plasma arc to the torch. Protestant concludes that because these machines are imported without controllers, which are sourced domestically, they are not capable of welding or cutting. Protestant maintains that interchanging the cutting and welding torches is a simple procedure requiring no alteration to the machine, and that the cost of the hose and torch is only 10 percent of the value of the complete machine. It should be noted that, as imported, the G940 and G990 incorporate power units and are fitted with a cutting hose and torch.

Relevant ENs at p. 1356 exclude from heading 8515 machines designed exclusively for cutting. These machines are referred to heading 84.56. It is apparent, therefore, that cutting machine tools "work" material for purposes of heading 8456. ENs at p. 1269 exclude from heading 8456 soldering, brazing or welding machines, whether or not capable of cutting. These are referred to heading 85.15.

The ENs notwithstanding, the GRIs are paramount in classifying goods imported into the Customs territory. A machine consisting of individual components interconnected by electric cables or other devices intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, is to be classified in the heading appropriate to that function. Section XVI, Note 4, HTSUS. Counsel's April 20, 1993, letter to Customs at Boston describes these machines and their manner of operation. The components that perform the cutting or welding consist of the plasma power supply unit, junction box, plasma torch and connecting hoses and cables. No mention is made of a controller. - 4 -

As described, the machine tools in issue are functional units within Note 4 which, in their condition as imported, are designed exclusively for cutting.

HOLDING:

The Komatsu fine plasma machine tools, models G940 and G990, are provided for in heading 8456. They are classifiable in subheading 8456.90.10, HTSUS.

The protest is DENIED. 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, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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