HQ 955566

APRIL 20, 1994

CLA-2:CO:R:C:M 955566 JAS

CATEGORY: Classification

TARIFF NO.: 8456.90.10

District Director of Customs

10 Causeway St., Suite 603

Boston, MA 02222-1059

RE: PRD 0401-93-100083; Fine Plasma Cutting Machine, Welding

Machine; Machine-Tool for Surface-Working Materials by

Plasma Arc Process, Heading 8456; Plasma Arc Welding,

Welding Machine Capable of Cutting, Heading 8515; Functional

Unit, Section XVI, Note 4, HTSUS

Dear Sir:

This is our decision on Protest No. 0401-93-100083, filed by

counsel on behalf of Komatsu-Cybermation, Inc., against your

action in classifying certain fine plasma cutting machines from

Japan. The entries under protest were liquidated on November 13

and November 27, 1992, and this protest timely filed on February

11, 1993.

FACTS:

The machines in question are the Fine Plasma G940 and G990.

These machines consist of the following components: a unit that

supplies both power and oxygen to the cutting torch, a junction

box referred to as a high frequency generator, plasma torch,

cables for connecting these components, plus nozzles and tungsten

electrodes to be fitted to the end of the torch. These machines

are said to be capable of performing three distinct functions;

they can weld and spot weld using one torch and cut using another

torch. In operation, when the supply unit is activated a high

frequency voltage is generated between the electrode and the

nozzle. Simultaneously, oxygen gas is supplied to the torch

where it is ionized to form a plasma. As the pilot arc reaches

the work the main arc is ignited. It is this plasma arc that

either welds or cuts the material. The cutting function is

accomplished by a torch with a small hole that produces a narrow

arc. In its welding mode, a torch with a larger hole that

produces a wider arc is utilized. A controller is added after

importation when the machine is mounted on a table. - 2 -

The models G940 and G990 are to be combined, after

importation, with a cutting table and integrated CAM workstation

and related software, into what protestant describes as the RASOR

Cutting System.

The machines were entered under the provision for machines

and apparatus for arc welding of metals, in subheading

8515.30.00, Harmonized Tariff Schedule of the United States

(HTSUS). The concerned import specialist determined that the

machines were designed exclusively for cutting, and liquidated

the entries under the provision for machine tools for working

metal by removal of material, by plasma arc process, in

subheading 8456.90.10, HTSUS.

The provisions under considerations are as follows:

8456 Machine tools for working any material by

removal of material, by laser or other

light or photon beam, ultrasonic, electro-

discharge, electro-chemical, electron-beam,

ionic-beam or plasma arc processes:

8456.90 Other:

8456.90.10 For working metal\...4.4 percent

\* \* \* \* \*

8515 Electric, laser or other light or photon

beam, ultrasonic, electron beam, magnetic

pulse or plasma arc soldering, brazing or

welding machines and apparatus, whether or

not capable of cutting:

Machines and apparatus for arc (including

plasma arc) welding of metals:

8515.31.00 Fully or partly automatic\...2 percent

8515.39.00 Other\...2 percent

ISSUE:

Whether a plasma arc welding machine that, in its condition

as imported, is capable only of cutting, is a machine of heading

8515\.

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 - 3 -

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 Customs Cooperation

Council\'s 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 notes should always be

consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23,

1989).

Protestant maintains that the models G 940 and G 990 are

multi-functional machines and are not designed exclusively for

cutting. Whether they can weld or cut is determined by the

torch, hose, and a controller; it is the controller that

regulates the flow of plasma arc to the torch. Protestant

concludes that because these machines are imported without

controllers, which are sourced domestically, they are not capable

of welding or cutting. Protestant maintains that interchanging

the cutting and welding torches is a simple procedure requiring

no alteration to the machine, and that the cost of the hose and

torch is only 10 percent of the value of the complete machine.

It should be noted that, as imported, the G940 and G990

incorporate power units and are fitted with a cutting hose and

torch.

Relevant ENs at p. 1356 exclude from heading 8515 machines

designed exclusively for cutting. These machines are referred to

heading 84.56. It is apparent, therefore, that cutting machine

tools \"work\" material for purposes of heading 8456. ENs at p.

1269 exclude from heading 8456 soldering, brazing or welding

machines, whether or not capable of cutting. These are referred

to heading 85.15.

The ENs notwithstanding, the GRIs are paramount in

classifying goods imported into the Customs territory. A machine

consisting of individual components interconnected by electric

cables or other devices intended to contribute together to a

clearly defined function covered by one of the headings in

chapter 84 or chapter 85, is to be classified in the heading

appropriate to that function. Section XVI, Note 4, HTSUS.

Counsel\'s April 20, 1993, letter to Customs at Boston describes

these machines and their manner of operation. The components

that perform the cutting or welding consist of the plasma power

supply unit, junction box, plasma torch and connecting hoses and

cables. No mention is made of a controller. - 4 -

As described, the machine tools in issue are functional

units within Note 4 which, in their condition as imported, are

designed exclusively for cutting.

HOLDING:

The Komatsu fine plasma machine tools, models G940 and G990,

are provided for in heading 8456. They are classifiable in

subheading 8456.90.10, HTSUS.

The protest is DENIED. 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, Lexis, the Freedom of Information

Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division