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HQ 959857




SEPTEMBER 15, 1997

CLA-2 RR:TC:MM 959857 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8477.90.80

Port Director of Customs
610 South Canal Street
Chicago, IL 60601

RE: PRD 3901 -96-100109; Press Plates Used in the Manufacture of High Pressure Decorative Laminates; Steel Sheets Chemically Etched or Peened, Heading 8442, Machinery for Preparing Printing Plates, HQ 083325; Articles Returned to the United States After Having Been Advanced in Condition Abroad, Subheading 9802.00.50, Export Packers, Ltd. v. U.S., 19 CFR 10.8, Certification of Registration, 19 CFR 10.8(k)

Dear Sir:

This is our decision on Protest 3901-96-100109, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain press plates, products of France, used in the manufacture of high pressure decorative laminates. The entry was liquidated on October 13, 1995, and this protest timely filed on January 11, 1996. In a submission, dated August 26, 1997, counsel for the protestant asserts an alternative claim for a partial duty exemption under subheading 9802.00.50, HTSUS, as articles returned to the United States after having been advanced in value or improved in condition while abroad.

FACTS:

The merchandise is twenty (20) press plates or flat sheets of electro-slag refined grades of American Iron and Steel Institute (AISI) grades 410 and 630 stainless steel, which have been either chemically etched with a finish composed of gently rolling hills and valleys, designated "Matte-58," or with a peened finish composed of microscopic craters or moonscape, designated "Artisan-43." These press plates are used in flat-bed hydraulic presses utilizing heat and pressure to impart a desired design in the creation of thermoset plastic sheets known generically as high pressure decorative laminates. - 2 -

The 20 press plates which are the subject of this protest were originally purchased by protestant from a subsidiary in France and imported into the U.S. Such plates are used to emboss an essentially perfect replication of their finish into the surface of the decorative laminate produced during the pressing operation. During use in the U.S., these 20 plates became damaged, which necessitated their temporary exportation to France for refinishing. All 20 plates were originally chemically etched with a finish known as "Matte-58". During the course of refinishing the plates in France, it was decided to convert 13 of the plates to a new peened finish designated "Artisan-43". The remaining 7 were refinished with the original "Matte-58" finish.

According to information provided by protestant, all 20 plates returned to France first underwent tolerance and spindle grinding to remove the remaining original finish on the plates. The 7 plates which were refinished with the "Matte-58" finish were coated with a photo reactive chemical, covered with a transparency and exposed to ultraviolet light. The exposure was then developed, which served as a pattern for the new finish on the plates. The empty spaces in the pattern were filled in by hand, after which the photo reactive chemical was removed by shot blasting. The entire plates were then etched with ferric chloride, washed, electropolished, washed again, and shot blast to the desired gloss.

The 13 plates which were converted to the "Artisan-43" finish were shot blast with beads to produce the printing pattern on the plates. They were then electropolished and washed. All 20 plates were then returned to the U.S.

The protested entry was liquidated under the provision in subheading 8477.90.80, HTSUS, for other parts of machinery for working rubber or plastics or for the manufacture of products from these materials. This is consistent with HQ 083325, dated May 1, 1989, in which chromium steel plates used to make decorative plastic laminate sheet were held to "work" plastics for purposes of heading 8477. Counsel maintains the provision in subheading 8442,50.10, HTSUS, for printing plates and other printing components, represents the correct classification. As previously stated, counsel now asserts a claim under subheading 9802.00.50, HTSUS.

The provisions under consideration are as follows:

8442 Machinery...for preparing or making printing blocks, plates...or other printing components

8442.50.10 Plates

8477

8477.90 Parts:

8477.90.80 Other

Articles returned to the United States after having been exported to be advanced in value or improved in condition by any process of manufacture or other means:

Articles exported for repairs or alterations:

9802.00.50 Other

ISSUE:

Whether embossing is a type of printing for purposes of heading 8442; whether the 20 returned press plates are entitled to a partial duty exemption under subheading 9802.00.50, HTSUS.

LAW AND ANALYSIS:

General Rule of Interpretation (GRI) 1 states, in relevant part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. Also, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, 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). - 4 -

Counsel's claim under subheading 8442.50.10 is that the involved process is one of embossing which, according to several dictionaries, is a type of printing. He cites technical publications to support this conclusion and notes that, among other things, printing involves making multiple copies of graphic images. These publications state that printing is not limited to ink-on-paper, and list embossing as a type of printing used to impart printed messages. Further, counsel cites heading 84.42 ENs at p. 1335, which list plates and dies for relief stamping or printing, for example, for machines which emboss, with or without also inking, letter heads, visiting cards, etc.

Counsel's definition of the term printing as involving the reproduction of graphic images is quite broad. Graphic images relate primarily to written or pictorial representations. There is some doubt, in our opinion, that the plates under protest here which impart a desired surface texture and gloss to plastic laminate reproduce true graphic images. Moreover, the cited ENs indicate that embossing is regarded as a printing operation for heading 8442 purposes when used with machines that produce letter heads, visiting cards, etc. Thus, not all embossing operations involve a recognized printing function. For example, HTS heading 8420 provides for calendering and other rolling machines. These machines utilize cylinders for a variety of operations, one of which is embossing. Moreover, the printing machinery of HTS heading 8443 utilizes the printing type, blocks, plates and cylinders of heading 8442. To adopt the position that the plates under protest are printing plates of heading 8442 would require that we regard flat bed hydraulic presses which utilize these plates as printing machinery of heading 8443, which is an unsupportable position. For these reasons, we are unable to accede to counsel's claim that the plates in issue are provided for in heading 8442.

Articles returned to the United States after having been exported to be advanced in value or improved in condition by repairs or alterations may qualify for the partial duty exemption under subheading 9802.00.50, HTSUS, provided the foreign operation does not destroy the identity of the exported articles or create new or difference articles. Such articles are dutiable only upon the cost or value of the foreign repairs or alterations when returned to the U.S., provided the documentation requirements of section 10.8, Customs Regulations (19 CFR 10.8), are satisfied.

Repairs are operations aimed at restoring articles to their original condition, but cannot be so extensive as to destroy the identity of the exported article or to create a new and different article. Press Wireless, Inc. v. United States, 6 Cust.Ct. 102, C.D. 438 (1941). In Press Wireless, radio tubes were sent abroad for repairs which involved the use of heavier filament than that used in the original manufacture of the tubes. Also, the markings on the articles were erased, and new numbers were substituted to facilitate matching the tubes for use in transmitters. The court held that the use of improved materials in the restoration was immaterial as long as the article was not considered a new and different article of commerce or its identity was destroyed.

In regard to this case, the reapplication of the "Matte-58" finish to 7 of the damaged press plates restored these plates to their original condition. Therefore, we find that the foreign refinishing of these 7 plates qualifies as an acceptable repair under subheading 9802.00.50, HTSUS. However, with respect to the remaining 13 plates, we believe that completely removing the original finish and converting these plates to an altogether different finish--the "Artisan-43"--qualifies as neither a repair nor an alteration under this tariff provision. When returned to the U.S., these 13 plates are not repaired or altered versions of the exported plates, but new and commercially different articles. In our opinion, the manufacturing processes performed abroad to convert these plates to the new finish effectively destroyed their original identity. Thus, we find that these 13 plates are not entitled to the partial duty exemption under subheading 9802.00.50, HTSUS.

With respect to the applicable documentation requirements, we note that the articles subject to this protest were entered on April 1, 1994. The documentation requirements of 19 CFR 10.8 were changed by amendments to that section effected by T.D. 94-47, published in the Federal Register on May 17, 1994 (59 FR 25563). As the application of those amendments was effective for goods entered on or after June 16, 1994, the goods subject to this protest are subject to the provisions of 19 CFR 10.8 as that section existed before the changes were made.

The principle change to the documentation requirements of 19 CFR 10.8 effected by T.D. 94-47 was the elimination of the requirement that a Certificate of Registration on Customs Form 4455 be filed with Customs before exportation of the articles to - 6 -
be repaired or altered abroad. As stated in the T.D., the purpose of this change was to "eliminate procedural burdens and delays and duplications of information collection."

At the time of the entry of the subject press plates, 19 CFR 10.8 also required the filing of a declaration from the person who performed the repairs or alterations as well as a declaration from the owner or importer. Although the two required declarations have been prepared and submitted with the protest, protestant advises that no Certificate of Registration was filed at the time of exportation of the press plates since, at that time, there was no intention of claiming subheading 9802.00.50, HTSUS, treatment for the refinished plates.

However, at the time of the entry of the subject articles, 19 CFR 10.8(k) provided, in pertinent part, as follows:

In any case where an imported article was exported for repairs or alterations without compliance with the registration requirements of this section, the district director, only if satisfied that the returned article is entitled to entry under subheading 9802.00.40 [and 9802.00.50], HTSUS, may waive the production of the Customs Form 4455.

Based upon the declarations and other commercial documentation submitted with the protest, we are satisfied that the 7 press plates which were refinished with the "Matte-58" finish are entitled to subheading 9802.00.50, HTSUS, treatment. Therefore, the requirement of filing the Certificate of Registration is waived in this case.

HOLDING:

Under the authority of GRI 1, the stainless steel plates with surface patterns designated Matte-58 and Artisan-43, are provided for in heading 8477. They are classifiable in subheading 8477.90.80, HTSUS. The protest should be DENIED as to the claim under subheading 8442.50.10, HTSUS.

Based upon the information submitted, we find that the 7 press plates which were exported to France and refinished with the "Matte-58" finish are entitled to the partial duty exemption under subheading 9802.00.50, HTSUS. However, the conversion of the remaining 13 plates from the original "Matte-58" finish to a new "Artisan-43" finish effectively destroyed the original identity of the plates and created new and commercially different articles. Therefore, the 13 plates with the "Artisan-43" finish are not entitled to subheading 9802.00.50, HTSUS, treatment. Thus, in regard to this issue, the protest should be ALLOWED IN PART and DENIED IN PART in accordance with this decision.

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, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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