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HQ 953761


August 18, 1993

CLA-2 CO:R:C:M 953761 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

District Director
U.S. Customs Service
55 Erieview Plaza
Cleveland, Ohio 44114

RE: Protest No. 4102-93-100001; TBU 3000, Windrow Turning Machine; composting machine; compost material; industrial use; 8432.80.00; EN 84.32; 8465.96.00; EN 84.65; 8436.80.00; EN 84.36; EN 84.79

Dear District Director:

This is in response to the Application for Further Review of Protest No. 4102-93-100001, which pertains to the tariff classification of the TBU 3000, Windrow Turning Machine under the Harmonized Tariff Schedule of the United States (HTSUS). A brochure and technical data sheet were submitted for examination.

FACTS:

The TBU 3000, Windrow Turning Machine (TBU 3000) is designed for use in large scale composting operations. The TBU 3000 machines at issue were purchased by companies involved in waste management. The TBU 3000 function is to turn, mix, aerate and laterally discharge previously composted material. The compost material is composed of various materials, such as dirt, leaves, and wood.

The entries of the TBU 3000 were liquidated starting on October 16, 1992, under subheading 8465.96.00, HTSUS, which provides for "Machine tools (including machines for nailing, stapling, glueing or otherwise assembling) for working wood, cork, bone, hard rubber, hard plastics or similar hard materials...Other...Splitting, slicing or paring machines...." In a protest timely filed on January 15, 1993, Finn Corporation, contends that the TBU 3000 is properly classified under subheading 8432.80.00, HTSUS, which provides for "Agricultural, horticultural or forestry machinery for soil preparation or cultivation; lawn or sports ground rollers; parts thereof...Other machinery."

ISSUE:

What is the tariff classification of the TBU 3000 under the HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...."

The Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes (ENs), although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). EN 84.32 (pgs. 1208-1210) states that:

This heading covers machines, whatever their mode of traction, used in place of hand tools, for one or more of the following classes of agricultural, horticultural or forestry work, viz.:

(I) Preparing the soil for cultivation (clearing, breaking, tilling, ploughing, loosening, etc.).
(II) Spreading or distributing fertilisers, including manure, or other products to improve the soil.
(III) Planting or sowing.
(IV) The working or maintenance of the soil during the growing period (hoeing, weeding, cleaning, etc.).

The types of machines included in heading 8432, HTSUS, include ploughs, harrows, scarifiers, cultivators, weeders, hoes, seeders, planters, transplanters, fertiliser distributors, manure spreaders, stone-removing machines, rollers, thinning-out machines, machines for clearing scrub and machines for cutting back the tops or stalks of plants.

Based on the submitted information, the TBU 3000 is not of the class or kind of machine classified under heading 8432, HTSUS. The TBU 3000 is designed for use in large scale composting operations. It does not perform one of the four classes of soil preparation or cultivation as listed in EN 84.32. Moreover, the TBU 3000 is not similar to the listed exemplars in EN 84.32.

Additionally, we are of the opinion that the TBU 3000 is not classified under subheading 8465.96.00, HTSUS, as machine tools for splitting, slicing or paring wood or similar hard materials. EN 84.65 (A)(9) (pg. 1286) states that:

Splitting, stamping, fragmenting, paring and slicing machines. All these machines transform a workpiece mechanically without removing chips of wood.

These include:...

(c) Fragmenting machines which produce small pieces of wood of similar size and shape. These include sliver cutting machines, particle producing machines, wood-wool making machines and chopping and chipping machines.

The submitted information states that the TBU 3000's "large- size milling drum is equipped with aggressive milling cutters." The aggressive milling cutters process waste material composed of various material which may be, in part, wood. However, the mere probability that part of the waste material is composed of wood does not render classification under subheading 8465.96.00, HTSUS, applicable. The TBU 3000 is not a fragmenting machine which produces small pieces of wood of similar size and shape. Accordingly, we are of the opinion that the TBU 3000 is not of the class or kind of machine classified under subheading 8465.96.00, HTSUS.

Moreover, we are of the opinion that the TBU 3000 is not classifiable under subheading 8436.80.00, HTSUS, which provides for "Other agricultural, horticultural, forestry, poultry-keeping or bee-keeping machinery, including germination plant fitted with mechanical or thermal equipment; poultry incubators and brooders; parts thereof...Other machinery...." EN 84.36 (pg. 1217) states that this heading covers machinery which is of the type used on farms, in forestry, in market gardens, or poultry-keeping or bee- keeping farms or the like. Additionally, EN 84.36 states that machines clearly designed for industrial use are excluded from this heading.

The submitted literature and information indicate that the TBU 3000 is designed for industrial use and is used by waste management companies specifically for large scale production of compost material. Based on this information, the TBU 3000 does not appear to be of the type used on farms but of a type used for the large scale production of compost material. Accordingly, we find EN 84.36 instructive for determining that the TBU 3000 does not satisfy the terms of heading 8436, HTSUS.

We are of the opinion that the TBU 3000 is classified under subheading 8479.89.90, HTSUS, which provides for "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof...Other machines and mechanical appliances...Other...Other...." EN 84.79 (pgs. 1313- 1319) states that this heading is restricted to machinery having individual functions which:

(a) Is not excluded from this Chapter by the operation of any Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any other Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter since:

(i) No other heading covers it by reference to its method of functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such headings (general purpose machines).

The TBU 3000 is not excluded from classification within Chapter 84, HTSUS, pursuant to Section XVI and Chapter 84, HTSUS, notes and, as stated previously, it is not more specifically covered by another heading in the HTSUS. Additionally, the TBU 3000 cannot be classified in any other heading of Chapter 84, HTSUS, because no other heading covers it by reference to its function, description or type, nor by reference to its use or to the industry in which it is employed. Therefore, the TBU 3000 is classified in subheading 8479.89.90, HTSUS.

HOLDING:

The TBU 3000 is classified under subheading 8479.89.90, HTSUS, as other machines having individual function, not specified or included elsewhere in Chapter 84, HTSUS.

As the rate of duty under the classification indicated above is more than the liquidated rate, 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
Commercial Rulings Division

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