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HQ 958300




MARCH 12, 1996

CLA-2 RR:TC:MM 958300 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8439.30.00

Port Director of Customs
1901 Crossbeam Drive
Charlotte, NC 28217

RE: I/A 31/95; Sym-Sizer, Machinery for Making Paper or Paperboard, Subheading 8439.10.00, Machinery for Finishing Paper or Paperboard, Subheading 8439.30.00, Paper Sizing, Coating Machinery; Parts, Subheading 8439.91; On- Line, Off-Line Paper Machines; HQ 955023, Sulzer Escher Wyss, Inc. v. United States

Dear Port Director:

Your memorandum, dated June 22, 1995 (CLA-1-DD:CO CD/EJF), forwarded this request for internal advice, initiated by counsel for Valmet, Inc., in its letter to you of May 19, 1995. The issue is the proper classification of paper coating machinery called the Sym-Sizer under the Harmonized Tariff Schedule of the United States (HTSUS)

FACTS:

The Sym-Sizer is a machine used in papermaking to add "size" to the paper web. Size is a coating consisting primarily of starch which adds strength to the paper sheet, acting like a glue to improve the bonding of the fibers to one another. The Sym-Sizer can also add pigmentation to the paper web and can perform additional coating operations as well. The Sym-Sizer applies the size material in a film onto parallel rolls which transfer the size onto the paper web at the nip, or the point where the rolls are immediately adjacent to each other. The Sym-Sizer reduces the amount of moisture applied to the paper web during sizing, thus decreasing the amount of drying required, and reducing the risk of web breakage.

In submissions, dated May 19, 1995, and February 26, 1996, counsel maintains the Sym-Sizer alters the surface characteristics of the paper web before the web has been manufactured into salable paper, and before on-line calendering, a process acknowledged to be part of making paper. Counsel has submitted an Affidavit from a - 2 -
technical consultant to the paper industry for the proposition that the Sym-Sizer is an advancement over the conventional size press and that all operations on the papermaking machine between the headbox and the reel, to include sizing and coating, are integral to producing the paper that emerges from the machine and are considered part of the papermaking process. Finally, counsel cites excerpts from the publication Handbook of Pulp & Paper Terminology in concluding that a sizing press - over which the Sym-Sizer is a technological advancement - is a papermaking, rather than a paper finishing device. For these reasons, the claim is that the Sym-Sizer is an on-line machine used in the process of making paper and is therefore classifiable as other parts of machinery for making paper or paperboard, in subheading 8439.99.10, HTSUS. Based on the principles of HQ 955023, dated December 6, 1993, your office considers the Sym-Sizer to be a coating machine classifiable in subheading 8439.30.00, HTSUS, as machinery for finishing paper or paperboard.

The provisions under consideration are as follows:

8439 Machinery for making pulp of fibrous cellulosic material or for making or finishing paper or paperboard...; parts thereof:

8439.30.00 Machinery for finishing paper or paperboard
...1.2 percent ad valorem

Parts:

8439.99 Other:

8439.99.10 Of machinery for making paper or paperboard...Free

ISSUE:

Whether for tariff purposes the Sym-Sizer is regarded as machinery for "making" paperboard or "finishing" paper or paperboard.

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 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. GRI 6 states, in relevant part, that the classification of goods in subheadings of the same - 3 -
heading shall be according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable.

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 under the System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

A preliminary issue is the applicability of Sulzer Escher Wyss, Inc. v. United States, 17 CIT 607 (1993), to the classification of the Sym-Sizer. This decision held that supercalenders, located off-line after the paper machine reel section, were papermaking machines, albeit machines classifiable as calenders for making paper of heading 8420. In eliminating Customs longstanding practice of regarding only on-line machines as machines for "making" paper, the court invites the corollary conclusion that certain on-line machines can be regarded as paper finishing machines. In short, the location of a machine on-line or off-line can no longer be a consideration in determining whether it is a papermaking machine. We agree with counsel that Sulzer is not controlling because the issue here, papermaking versus paper finishing, is not relevant to the issue that was before the court, i.e., the classification of supercalenders in heading 8420.

Counsel maintains the excerpts from the Handbook of Pulp & Paper Terminology, cited in its February 26 submission, substantiate the claim that a size press is a papermaking device not a paper finishing device. The caption PAPER MACHINE includes, in relevant part, the statement "A typical paper machine includes a headbox to distribute the stock dispersion onto the fabric, followed by the forming section, press section, dryer part, calender stack and reel." The next caption PAPER MACHINE SECTIONS includes, in relevant part, the statement "Many paper machines also have a size press and/or coating station." Finally, the caption SIZE PRESS includes the statement "Roll press (either horizontal, vertical, or inclined) located between the dryer sections in which the paper is given a one or two-sided application of sizing or other liquid coating. In our opinion, these excerpts are conflicting and, at best, inconclusive. This is because the description under the first caption does not mention size presses, and the clear inference from the description under the second caption is that not all paper machines have size presses.

Notwithstanding the affirmations in the Affidavit submitted by counsel, another source of information on pulp and paper technology, the Handbook for Pulp and Paper Technologists, discusses wet end and dry end paper manufacture in two chapters
sizing and coating machinery are discussed in a separate chapter on surface treatments. In this regard, the heading 84.39 ENs at p. 1228 under (II) MACHINERY FOR MAKING PAPER OR PAPERBOARD, make no mention of size presses or other coating machinery.

Under GRI 6, ENs at p. 1229 are relevant in examining the scope of subheading 8439.30.00. Included in the group under (III) MACHINERY FOR FINISHING PAPER OR PAPERBOARD are machines (other than calenders) for applying various kinds of surface coatings, size, gum, varnish, enamel, metal powder, wax, etc.; for coating carbon papers or photographic papers; for coating paper with textile dust, cork or mica powder, etc., for wallpapers. These ENs describe the Sym-Sizer. HQ 955023, dated December 6, 1993, is in accord.

HOLDING:

Under the authority of GRI 1, the Valmet Sym-Sizer is provided for in heading 8439. It is classifiable in subheading 8439.30.00, HTSUS.

You should mail this decision to the internal advice applicant, through counsel, no later than 60 days from the date of this letter. On that date 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, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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