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HQ 966029




February 11, 2003

CLA-2 RR:CR:GC 966029 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.89.95

Assistant Port Director
Trade Operations
U.S. Customs Service
610 S. Canal Street
Chicago, IL 60607

RE: Further Review of Protest No. 3901-01-101351; Membrane Heat Sealing Machine.

Dear Port Director:

This is our decision on Protest 3901-01-101351, filed by J.F. Moran Company, Inc. on behalf of Packaging Technologies against classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a membrane heat sealing machine. A sample of a finished can with peelable membrane was included. The date of entry for the product is December 21, 2001. The entry was liquidated on May 10, 2002, and this protest was timely filed on August 7, 2002.

FACTS:

The merchandise at issue is a membrane heat sealing machine. Product literature submitted as part of a Customs Form 6431 report depicts the “Membrane Heat Sealing Machine MHM for Reworking Tin Can Ends into Easy Peelable Membrane Can Ends,” Type 1982. It can accommodate can ends between 85 to 160 mm wide and 85 to 160 mm high. The machine can accommodate various end materials, such as tinplate, TPS, and aluminum. It can also accommodate membrane material of aluminum foil, compound foil, and plastic foil.

The same product literature describes the heat sealing process. Preformed can ends (not attached to the can body) without an opening are first fitted into the destacker (manually or automatically). Separating blades part the lowest end per line and a lifting plate places it in the transportation unit. The transport unit transports the end intermittently from one station to the next. The opening (either full or partial) is

2
punched into the end in two steps, producing a ring. Depending on the end product to be packaged in the can, the punched edge is bent down or curled up to eliminate its sharp edge. The membrane foil is unwound from the roll and advanced into the sealing station. In the punching and sealing station, the membrane is punched out and sealed directly onto the ring by means of heat and pressure. Then the membrane surface can be embossed in another station (if so desired) and a pull tab can be attached to the membrane in the proper position. The finished ends then exit the machine through a chute and are conveyed to other machines by conveyor belts. Additional notes state that the can end then goes through additional processes in the production line where the end is seamed onto a can body, and the can is filled with a product. The other can end is sealed by attaching a closure to the other end of the can in a 3-piece can production process, (in a 2-piece process the other end of the can and can body are already seamed together). Finally, the can is labeled and packed into a shipping carton.

The machine was entered under subheading 8422.30.10 (currently 8422.30.11), HTSUS, as a “can-sealing machine.” However, the entry was liquidated under the subheading 8419.89.90 (currently 8419.89.95), HTSUS, essentially as a “heat-sealing machine.”

You rejected the protestant’s classification of the machine on the basis that the machine did not seal or close the can, but merely sealed a peelable membrane to one end of a can. The protestant argues that prior liquidations of similar or substantially identical machines in Memphis and New York were made under subheading 8422.30.10, HTSUS. The protestant argues that the machine should be classified under subheading 8422.30.10 (currently 8422.30.11), HTSUS, or alternatively under subheading 8422.30.90 (currently 8422.30.91), HTSUS.

The HTSUS provisions under consideration are as follows:

Machinery, plant or laboratory equipment, whether or not electrically heated (excluding furnaces, ovens and other equipment of heading 8514), for the treatment of materials by a process involving a change of temperature such as heating, cooking, roasting, distilling, rectifying, sterilizing, pasteurizing, steaming, drying, evaporating, vaporizing, condensing or cooling, other than machinery or plant of a kind used for domestic purposes; instantaneous or storage water heaters, nonelectric; parts thereof:

Other Machinery, plant or equipment:
8419.89 Other:
8419.89.95 Other:

Dishwashing machines; machinery for cleaning or drying bottles or other containers; machinery for filling, closing, sealing or labeling bottles, cans, boxes, bags or other containers; machinery for capsuling bottles, jars, tubes, and similar containers; other packing or wrapping machinery (including heat-shrink wrapping machinery); machinery for aerating beverages; parts thereof:

Machinery for filling, closing, sealing, or labeling bottles, cans, boxes, bags or other containers; machinery for capsuling bottles, jars, tubes and similar containers; machinery for aerating beverages:

Can-sealing machines
8422.30.91 Other

ISSUE:

What is the proper tariff classification for this membrane heat sealing machine?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed and that the classification is protestable (see 19 U.S.C. § 1514(a)(2) and (5)).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

For classification within Chapter 84, HTSUS, the device must be “machinery or apparatus.” Chapter 84, HTSUS, is within Section XVI, HTSUS, making the Section XVI notes applicable to this classification. Note 5, Section XVI, HTSUS, defines “machine” as “any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85.” This device satisfies this description because it is a machine to heat seal foil membrane, which is cited in the headings of Chapter 84.

EN 84.22 states in relevant part, “[T]he heading also covers machines of different types . . . for filling or closing such containers (including machines for aerating beverages) and, generally, for packing (including heat-shrink wrapping) goods for sale, transport or storage. These include: . . . (4) Bottle or jar closing, corking or capping machines; can closers and sealers (including those closing by soldering).”

“Can closers and sealers” are not defined in the HTSUS. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). According to Merriam-Webster’s Collegiate Dictionary (10th ed. 2002), to seal is defined, in pertinent part, as “to fasten with or as if with a seal to prevent tampering; to close or make secure against access, leakage, or passage by a fastening or coating; to fix in position.”

Canning technology was discussed in Headquarters Ruling letter (HQ) 951510, dated August 7, 1992. In that ruling, several types of can ends, commonly known as lids, with metal pull tabs or pop up tabs were classified as “lids...seals and other packing accessories . . . of base metal: Other,” under subheading 8309.90.00, HTSUS. The ruling also referred to the Encyclopedia Americana and the McGraw Hill Encyclopedia of Science and Technology to describe the canning process and the types of machinery used to seal or close the cans (i.e., the machines that sealed the ends of the can to the body of the can). Those machines, however, were separate machines from those machines that created the pull tab or pop up tab can lids themselves.

This membrane heat sealing machine does not seal or close the can itself, but merely manufactures a special type of can end. The protestor claims that the subject machine seals the can. Under the common definition of “sealing” a can, however, a can is “sealed” only when the ends are attached and seamed or sealed to the can body. This machine seals a peelable opening to a can end that will later be sealed or seamed onto the body or shaft of the can. Therefore, strictly speaking the machine does not seal the can itself, but seals an opening to the can top or end. Thus, the function performed by the membrane heat sealing machine does not fall under the common and commercial meaning of the term “sealing” as contemplated by heading 8422, HTSUS. The main function of the instant machine is a discrete function separate from sealing the can. We note that the sample provided is a finished product, not simply the can end produced by this machine. Therefore, based on the foregoing analysis, the machine is not provided for under heading 8422, HTSUS.

HOLDING:

Under GRI 1, the membrane heat sealing machine is provided for in heading 8419. It is classified under subheading 8419.89.90 (currently 8419.89.95), HTSUS.

The protest should be DENIED. 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon
Director,
Commercial Rulings Division

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