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HQ 964638




April 12, 2001

CLA-2 RR:CR:GC 964638 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8515.80.00

Port Director
U.S. Customs Service
4477 Woodson Road
St. Louis, MO 63134

RE: Impulse bag sealers; Protest 4503-00-100034

Dear Sir:

This is our decision regarding Protest 4503-00-100034, filed by the J.J. Elemer Corporation (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain impulse bag sealers.

FACTS:

The 13 entries enumerated in the protest were filed between July 1, 1999 and April 25, 2000. All of these entries were liquidated on July 7, 2000. The protest was filed on October 5, 2000.

The merchandise consists of impulse bag sealers and shrink wrappers for commercial applications. Impulse bag sealers are devices used to seal or close the ends of a plastic bag by manually pressing down a handle containing a heated electrical filament. The shrink wrappers (the models with the designation “SW” at the end of their item number) are used primarily for shrink film sealing (shrink wrapping) although they can also function as bag sealers. In their condition as imported, the shrink wrappers can only function as impulse bag sealers. The merchandise is hereinafter referred to as impulse bag sealers.

The merchandise was entered under subheading 8515.80.00, HTSUS, which provides for: “Electric ... welding machines and apparatus ... : ... Other machines and apparatus.” The entries were liquidated under subheading 8543.89.96, HTSUS, which provides for: “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [Chapter 85] ... : ... Other machines and apparatus: ... Other: ... Other: ... Other.”

ISSUE:

What is the tariff classification of the impulse bag sealers?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

8515 Electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus ... :

8515.80.00 Other machines and apparatus

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:

Other machines and apparatus:

8543.89 Other:

Other:

8543.89.96 Other

In support of its claim, the protestant cites EN 85.15 (I) (H) (2), which provides as follows:

(H) Machines and apparatus for welding thermoplastic materials. ...
(2) Welding with electrically heated elements (heating element welding). The surfaces to be joined are warmed by means of electrically heated elements and joined under pressure with or without additives. [Emphasis in original.]

Webster’s Third New International Dictionary (1986) defines “weld” as: “1 a: to unite or consolidate (as metallic parts) by heating to a plastic or fluid state the surfaces of the parts to be joined and then allowing the metals to flow together ... b: to unite (plastics) in a similar manner by heating ...” Dorland’s Illustrated Medical Dictionary (1994) defines “thermoplastic” as: “softening under heat and capable of being molded into shape with pressure, then hardening on cooling without undergoing chemical change.”

In HQ 964783 dated March 27, 2001, we revoked HQ 962014 dated October 1, 1999. In so doing, we found certain impulse bag sealers to be classified in subheading 8515.80.00, HTSUS. We stated:

We have carefully considered whether the impulse bag sealers are welding apparatus within the meaning of heading 8515, HTSUS. It is our conclusion that they are welding apparatus in that they are machines for welding or sealing plastic bags. EN 85.15 (I) (H) gives us guidance on the scope of the term “welding” in heading 8515, HTSUS, and it includes the welding of thermoplastic materials. The PFS-200 and PFS-300 impulse bag sealers are described by this EN.

Because heading 8515 is more specific than heading 8543 (“electrical machines and apparatus ... not specified or included elsewhere in this chapter ... “), we determine that the impulse bag sealers are provided for in heading 8515, HTSUS, and that they are classified in subheading 8515.80.00, HTSUS.

The file indicates that the impulse bag sealers in this protest are of the same class or kind as the impulse bag sealers in HQ 964783.

Accordingly, we find that the impulse bag sealers are classified in subheading 8515.80.00, HTSUS, as: “Electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus ... : ... Other machines and apparatus.”

HOLDING:

As detailed above, the impulse bag sealers are classified in subheading 8515.80.00, HTSUS, as: “Electric (including electrically heated gas), laser or other light or photon beam, ultrasonic, electron beam, magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus ... : ... Other machines and apparatus.”

You are instructed to GRANT the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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