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HQ 959656




APRIL 11, 1997

CLA-2 RR:TC:MM 959656 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8461.90.40, 8461.90.80

Erick D. Smithweiss, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue
New York, NY 10167-0002

RE: Machinery for Preparing Metal Cylinders for use in Rotogravure Printing Press, Heading 8442; Consolidated International Equipment & Supply Co. v. U.S., Metal Cylinder Engraving Machine; Scanner, Control Unit and Engraving Machine, Functional Unit, Section XVI, Note 4; Machine Tool for Removing Metal, Engraving Machine, Heading 8461, EN 84.61; NY 803750

Dear Mr. Smithweiss:

Your letter to the Area Director of Customs, New York Seaport, dated August 6, 1996, on behalf of Linotype-Hell Company, concerning the tariff status of the Helio-Klischograph model K302, a machine for preparing printing cylinders for use in rotogravure printing presses, has been referred to this office. You submitted a representative photograph of the K302. You presented oral arguments at a meeting in our office on April 1, 1997.

FACTS:

The Helio-Klischograph model K302 consists of three (3) main components, a scanner, control unit and engraver, all of which function together to compose text and images and transfer them onto the printing cylinder. The scanner is a large drum which incorporates a number of scanning heads, each with incandescent lamps and lenses that project light. The pages to be scanned are placed on the drum and the drum rotated. As a page is scanned the photo-diodes detect the intensity of the reflected light from the page in the form of analog signals which are converted to digital signals and transmitted to the control unit. The control unit incorporates a computer, several control cabinets, monitor and a keyboard. In addition to storing the digital signals - 2 -
received from the scanner, the control unit allows the user to vary the density or tones of the images being reproduced and, thus, to compose the text and images that will be reproduced on the printing cylinder. An engraving amplifier in the control unit converts the composed text and images from digital to analog format which it sends to any of the eight engraving heads on the engraving machine and directs the diamond stylus on each head to make the desired cuts in the surface of the cylinder.

You maintain that the K302 is a functional unit, as defined by Section XVI, Note 4, Harmonized Tariff Schedule of the United States (HTSUS), the principal function of which is to prepare printing cylinders as described above, a function described by HTS heading 8442. As such, you state that General Rule of Interpretation (GRI) 1, HTSUS, requires classification of the K302 in heading 8442.

The provisions under consideration are as follows:

8442 Machinery...for preparing or making printing...cylinders or other printing components; parts thereof:

8442.30.00 Other machinery...Free

8461 [o]ther machine tools working by removing metal, not elsewhere specified or included:

8461.90 Other:

8461.90.40 Numerically controlled...4.4 percent ad valorem

8461.90.80 Other...4.4 percent ad valorem

ISSUE:

Whether the Helio-Klischograph K302 is machinery for preparing or making printing cylinders or other printing components; whether it is a machine tool or performs a machine tool function.

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.

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).

Section XVI, Note 4, HTSUS, states, in relevant part, that a combination of machines, 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 85, are to be classified in the heading appropriate to that function. Without further elaboration, we agree that the K302 is a functional unit for tariff purposes. Without deciding whether the "function" the K302 performs is preparing or making printing cylinders as opposed to engraving the printing cylinder, by its own terms heading 8442 excludes machine tools of headings 8456 to 8465.

You cite Consolidated International Equipment & Supply Co., v. United States, 60 Cust. Ct. 134, C.D. 3290 (1968), in which the court held, among other things, that an earlier model of the Helio-Klischograph K302 was not a machine tool under a previous tariff nomenclature - the Tariff Act of 1930 - because it did not "work" on metal in the sense intended by Congress, i.e., in the manner of traditional machine tools, power-driven machines utilizing tools that work on metal, such as lathes, milling, drilling and grinding machines enumerated in relevant portions of the Summary of Tariff Information. As you know, judicial decisions under a previous Nomenclature may be instructive on a case-by-case basis, particularly where the - 4 -

Nomenclature previously interpreted remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. In this case, the text of the HTSUS may require a dissimilar interpretation.

In addition, you note that relevant heading 8442 ENs at p. 1234 describe machines and apparatus used to make printing cylinders and other printing parts or used to assemble (compose or set) it for use in printing. Other ENs at p. 1236 describe, under heading 8442, machines for making printing plates by direct reproduction from a document in which a photocell scans the document, and impulses transmitted by an electronic device from that cell activate a tool which engraves a plate of plastics. You conclude that these notes sanction engraving as part of a process used to prepare or make printing cylinders. However, the same ENs, at p. 1338, under (h), exclude from heading 8442 metal working machine tools, to include engraving machines, among others. Because of this apparent conflict, we conclude that the cited ENs offer no guidance in this case.

On the other hand, the ENs, at pp. 1276 and 1278, state only that machine-tools of heading 8461 work by removing metal, but specifically include engraving machines other than those of headings 8459 or 8460. The term engrave is defined neither in an HTSUS legal note nor an EN. In common meaning, the term means to carve, cut or etch into a material, in particular, a block or printing surface. In fact, literature describes computer-controlled stylus-based systems used in marking parts with dates, codes and other identifying information, that are substantially similar in terms of technology to the machine in issue here, as involving a recognized engraving process. The Helio-Klischograph model K302 performs an engraving function appropriate to machine tools of heading 8461. By its own terms, heading 8442 is eliminated from consideration. NY 803750, dated November 23, 1994, classified an identical machine in subheading 8461.90.40, HTSUS.

HOLDING:

Under the authority of GRI 1, the Helio-Klischograph model K302 is provided for in heading 8461. It is classifiable in - 5 -
subheading 8461.90.40, HTSUS, if numerically controlled, or in subheading 8461.90.80, HTSUS, if not numerically controlled. The rate of duty under both provisions is 4.4 percent ad valorem.

Sincerely,

John Durant, Director
Tariff Classification

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