HQ 0950218 - Protest No. 1303-91-100246; Hydraulic Mine Roof Shield Supports; 8430; 8431; EN 84.30; XTC Products, Inc. v. U.S.; U.S. v. Citroen; Daisy-Heddon, Div. Victor Comptometer Corp. v. U.S.; GRI 2(a); Section XVI, Note 4; HQ 084855; HQ 085145; HQ 087077; C.I.E. 227-67; NY 802700; NY 803104; Item 664.05, TSUS; Item 664.08, TSUS; H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863 - United States International Trade Commision Rulings

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HQ 950218

April 17, 1992

CLA-2 CO:R:C:M 950218 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

District Director
U.S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202

RE: Protest No. 1303-91-100246; Hydraulic Mine Roof Shield Supports; 8430; 8431; EN 84.30; XTC Products, Inc. v. U.S.; U.S. v. Citroen; Daisy-Heddon, Div. Victor Comptometer Corp. v. U.S.; GRI 2(a); Section XVI, Note 4; HQ 084855; HQ 085145; HQ 087077; C.I.E. 227-67; NY 802700; NY 803104; Item 664.05, TSUS; Item 664.08, TSUS; H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863

Dear Sir:

This protest concerns the tariff classification of hydraulic mine roof shield supports under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles in question are hydraulically operated mine roof shield supports [hereinafter "shield supports"]. The shield supports, along with a shearer and a face conveyor, form a longwall mining system. In this system, the shield supports are installed side by side along the face of an underground coal seam to form a continuous overhead canopy which cantilevers over the shearer and the face conveyor. The shield supports prevent the mine roof from collapsing onto these machines as the coal is removed.

The coal shearer, which is self-propelled and moves laterally across the coal seam face, shears off coal in 20 to 30 inch wide strips and pushes the chunks of coal onto the face conveyor. The face conveyor moves that coal away from the face of the coal seam and onto a belt conveyor, which is not a machine
of the longwall mining system. The stage loader, which is a part of the conveyor system, takes the coal from the belt conveyor. The loader has a "crusher" to break any pieces of coal that are too large.

While the coal is being removed from the mining area, hydraulic cylinders located at the base of the shield support push sections of the face conveyor into the resulting gap in preparation for the next shearing pass. Hydraulic cylinders in the shield support which support the caving shield are then retracted a few inches, the bases sequentially advanced toward the coal face, and the shield supports re-extended so that they again support the mine roof.

The shield supports are self-propelled, and they move the system forward. Approximately 100-160 shield supports are used in a single longwall mining system. The three machines of a longwall mining system are interdependent on each other. No two could function without the third. Thus, while the shield supports are self-propelled, they cannot operate by themselves.

In HQ 084855, dated September 13, 1989, self-advancing hydraulic mine roof shield supports were classified under subheading 8479.89.90, HTSUS, which provides for "[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter . . . [o]ther machines and mechanical appliances . . . [o]ther . . . [o]ther." The articles in question were liquidated under this same subheading. The protestant contends that the shield supports are classifiable under Heading 8430, HTSUS, which describes other excavating or extracting machinery. In the alternative, the protestant contends that the shield supports are covered by Heading 8431, HTSUS, which describes parts suitable for use solely or principally with the extracting or excavating machinery of Heading 8430, HTSUS.

ISSUE:

Whether the shield supports are classifiable as other excavating machinery under Heading 8430, HTSUS, as parts thereof under Heading 8431, HTSUS, or as machines not specified or included elsewhere under Heading 8479, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."

The headings at issue are as follows:

8430 Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores . . .

8431 Parts suitable for use solely or principally with the machinery of headings 8425 to 8430

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter

A complete longwall mining system consists of the following three pieces of machinery: (1) a shearing machine; (2) a face conveyor; and (3) shield supports. After the shearing machinery slices off the coal, the face conveyor moves that coal away from the face of the coal seam. The shearing machinery, or plow, is self-propelled and it moves laterally across the face of the coal. The shield supports are also self-propelled, and they move the system longitudinally forward.

Section XVI, Note 4 states that "[w]here a machine (including a combination of machines) consists of individual components . . . intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function." The shearing machinery, face conveyor, and the shield supports, which form a longwall mining system, contribute together to perform a function defined under Heading 8430, HTSUS. The three machines are interdependent on each other. No two could function without the third. As such, if this entire system were imported together, it would be classifiable as extracting machinery under this heading, not because all three machines extract, but because the three constitute a "functional unit."

This conclusion, however, does not mean that one of the three machines must necessarily be classified under Heading 8430, HTSUS, or as a part of the system. Recently, the U.S. Court of

International Trade reiterated that "[i]t is well established that an imported article is to be classified according to its condition as imported . . . ." XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). Your office determined that, as imported, the shield supports are not classifiable under Heading 8430, HTSUS, as "[o]ther moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery . . . ."

The protestant contends that the shield supports are classifiable under Heading 8430, HTSUS, according to GRI 2(a). GRI 2(a) states that:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.

In Daisy-Heddon, Div. Victor Comptometer Corp. v. United States, 600 F.2d 799 (1979), the U.S. Court of Customs and Patent Appeals set the guidelines to be followed in determining the classification of unfinished articles. The protestant asserts that the shield supports, based on the Daisy-Heddon guidelines, are classifiable as unfinished coal cutting or excavating machinery. However, as imported, the shield supports are not an unfinished article--they are complete machines in and of themselves. It is inappropriate to apply Daisy-Heddon to a complete machine that will be incorporated into a system in the U.S. after importation. Similarly, it is inappropriate to perform an "essential character" analysis in this instance. By way of example, if the face conveyor--a machine in a longwall mining system--was imported into the U.S. by itself, it would not be classified as an unfinished article, even if the Daisy-Heddon or "essential character" criteria were satisfied, because the conveyor is specifically provided for under Heading 8428, HTSUS [other loading or unloading machinery]. This reasoning should not change simply because the article in question is not specially provided or included elsewhere.

The protestant also contends that since the shield supports are the propelling base for the complete system, they should be classified pursuant to Explanatory Note 84.30, as incomplete self-propelled coal cutting or extracting machinery under Heading 8430, HTSUS. EN 84.30, pg. 1203, states that Heading 8430, HTSUS, "covers self-propelled machines in which the propelling base, the operating controls, the working tools and their
actuating equipment are specially designed for fitting together to form an integral mechanical unit." For example, EN 84.30, pg. 1203, states that a propelling base resembling a tractor, but specially designed, constructed or reinforced to form an integral part of a machine performing one or more of the functions listed in Heading 8430, HTSUS, would be classified under this heading. EN 84.30, pg. 1203-1204, further states that "[p]resented separately, such propelling bases also fall in this heading, as incomplete machines having the essential features of complete machines of the same kind."

It is our opinion that the shield supports are not the type of propelling base contemplated by the Explanatory Notes. While the EN's listing of a tractor-type base is only an example, it is clear that the propelling base must in some way resemble a tractor. For example, EN 84.30, pg. 1204, provides that "[f]or more detailed criteria for distinguishing between the tractors of heading 87.01 and the propelling bases of this Chapter see Explanatory Note 87.01." Heading 8701, HTSUS, provides for "[t]ractors (other than those of heading 8709)." Thus, a tractor-type propelling base was clearly the type contemplated by the notes, and therefore, the note is inapplicable to the present case.

Alternatively, the protestant argues that the shield supports are covered by Heading 8431, HTSUS, which describes parts suitable for use solely or principally with the extracting or excavating machinery of Heading 8430, HTSUS. As stated above, the three basic machines in a longwall mining system are interdependent on each other. No two could function without the third.

The protestant suggests that the shield supports, which are used solely with the other machines of a longwall mining system (which, according to Note 4 to Section XVI, is classifiable under Heading 8430, HTSUS), should be classified as a part of such system under Heading 8431, HTSUS. However, in discussing the applicability of Note 4 to Section XVI, this office has concluded that "there are no Legal Notes or ENs that provide for 'unfinished functional units.'" HQ 087077, dated March 27, 1991. Similarly, there are no Legal Notes or ENs which provide for "parts of functional units." The fact that several machines, if imported together, would be classified under a single heading as a "functional unit" does not mean that the same should hold true if they are imported separately. When imported separately, the machines must be individually classified.

Moreover, it would be inappropriate, in this instance, to classify the shield supports, which are complete machines by
themselves, as "parts" of a system composed of more than one machine. The shield supports are not a part of a particular machine for extracting coal, but rather a part of a system, or group, of machines which function together to perform longwall mining operations. The shearing machinery, the face conveyor and the shield supports are separate machines in and of themselves, designed to work in conjunction with one another for a common purpose, but each having an individual identity. Therefore, the shield supports are not parts of an article (or a machine) of Heading 8430, HTSUS, and thus cannot be classified under Heading 8431, HTSUS.

Finally, the protestant argues that there is a uniform and established practice of classifying shield supports as mining equipment under the TSUS, and that this practice carries over to the HTSUS. In C.I.E. 227-67, dated February 28, 1967, it was held that "[t]here is a uniform and established practice of classifying equipment similar to the mechanized roof supports and the hydraulic roof supports, Mk III, under the provision for extracting machinery, whether stationary or mobile, for minerals or ores, in item 664.05, Tariff Schedules of the United States (TSUS) . . . ." That postion was later affirmed in NY 802700, dated April 19, 1982, and in NY 803104, dated June 16, 1982 [then, under item 664.08]. Item 664.08, TSUS, provided for "mechanical shovels, coal-cutters, excavators, scrapers, bulldozers and other excavating, levelling, boring and extracting machinery . . . for earth, minerals or ores." The protestant contends that Customs is required to continue this "practice" under the Harmonized System.

The text of Heading 8430, HTSUS, is substantially similar to this prior TSUS provision. However, the Harmonized Commodity Description and Coding System Explanatory Notes were drafted subsequent to the preparation of the Harmonized System Nomenclature itself. The Conference Report on H.R. 3, the Omnibus Trade and Competitiveness Act of 1988, part 3, explained that the Explanatory Notes, while not legally binding, are generally indicative of proper interpretation of the various provisions of the Convention and that they should be consulted for guidance. H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863 (1988). As shown above, based on the Explanatory Notes and the text of the heading, the articles in question cannot be classified under Heading 8430, HTSUS.

Customs position with regard to the classification of self- advancing hydraulic mine roof shield supports under the HTSUS was clearly expressed in HQ 084855, dated September 13, 1989. In that ruling, this office classified the shield supports under subheading 8479.89.90, HTSUS, which describes other machines and
mechanical appliances not specified or included elsewhere. Therefore, according to HQ 084855, the shield supports are classifiable under subheading 8479.89.90, HTSUS. The rulings under the TSUS concerning the classification of shield supports are not valid precedent under the HTSUS.

HOLDING:

The shield supports are classifiable under subheading 8479.89.90, HTSUS, which provides for "[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter . . . [o]ther machines and mechanical appliances . . . [o]ther." The corresponding rate of duty for articles of this subheading is 3.7% ad valorem.

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

Sincerely,

John Durant, Director

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