HQ 950571

FEBRUARY 12, 1992

CLA-2:CO:R:C:M 950571 JAS

CATEGORY: Classification

TARIFF NO.: 8419.89.50

District Director of Customs

101 East Main St.

Norfolk, Va. 23510

RE: Thermal Breakout Machine; Propane/Natural Gas Cutting

Machine; 8419.89.50, 8464.90.00; PRD 1401-1-100132

Dear Sir:

This our decision on Application for Further Review of Protest No.
1401-1-100132, dated August 23, 1991, filed on behalf of the Glassline
Corp., Perrysburg, Ohio.

FACTS:

The machine in issue, from Germany, is a thermal breakout machine. It is
one component of a plant for making automotive glass. A diagonal cutter
cuts large glass blanks into smaller blanks which move by conveyor to an
automated cutting machine. This machine scores the glass in the shape
required to fit a car window. The scored shapes then move to the thermal
breakout machine where propane or natural gas torches are directed at
the score causing excess glass to fall off. Rotating breakout bars
operate separately from the thermal breakout machine to mechanically
knock off any remaining excess glass.

You liquidated the entries under subheading 8419.89.50, Harmonized
Tariff Schedule of the United States (HTSUS), other machinery, plant or
laboratory equipment, whether or not electrically heated, for the
treatment of materials by a process involving a change of temperature
such as heating. You note that heading 8464 covers the machine as well,
but cite a Chapter 84 legal note that requires classification in heading
8419.

Protestant maintains that subheading 8464.90.00, HTSUS, other machine
tools for cold working glass, represents the proper classification. The
argument is that the thermal breakout machine is not provided for in
heading 8419 because it does not

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\"treat\" the glass by heating it; rather, glass in the cold is heated
only slightly in what protestant refers to as thermal shock, so that
excess pieces can be knocked off in a separate mechanical process.

ISSUE:

Whether the machine in issue is described both in heading 8419 and in
heading 8464; if so, which heading prevails.

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.

Subject to exceptions not relevant here, a machine or appliance which
answers to a description in one or more of the headings 8401 to 8424 and
at the same time to a description in one or more of the headings 8425 to
8480 is to be classified under the appropriate heading of the former
group and not the latter. Chapter 84, Note 2, HTSUS. For the reasons
that follow, we find that this note does not apply.

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.

Relevant ENs at p. 1173 indicate that heading 8419 covers, machinery and
plant, generally industrial in nature, designed to subject solid
materials to a heating process in order to cause a simple change of
temperature or to cause a transformation of the materials resulting
principally from the temperature change. The heading excludes machinery
in which the heating, even if essential, is a secondary function
designed to facilitate the main mechanical function of the machine. The
thermal breakout machine conforms to the description in this note and
therefore answers to the description in heading 8419.

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Other ENs at p. 1283 indicate that the category of machines of heading
8464 for cold working glass includes those that slightly heat the glass
to facilitate certain processes. Such machines are said to work on glass
that still retains the consistency of a hard material. Many of these
glass working machines carry out operations similar to the sawing,
splitting or cleaving, and cutting machines of heading 8464 for working
stone and like mineral materials. The heating function, in such cases,
can be said to be subsidiary to whatever mechanical function the machine
performs. The only function of the machine in issue here is thermal. It
performs no mechanical function at all. We conclude, therefore, that
heading 8464 does not encompass the thermal breakout machine.

HOLDING:

Because the thermal breakout machine is provided for in heading 8419 but
not in heading 8464, Chapter 84, Note 2, HTSUS, does not apply.

Under the authority of GRI 1, the machine is provided for in heading
8419. Actual classification is in subheading 8419.89.50, HTSUS, other
machinery, plant or laboratory equipment, whether or not electrically
heated, for the treatment of materials by a process involving a change
of temperature such as heating.

The protest should be denied. A copy of this decision should be attached
to the Customs Form 19 and provided to the protestant, through his
broker, as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division