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HQ 954305


SEPTEMBER 8 1993

CLA-2:CO:R:C:M 954305 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8477.80.00

District Director of Customs
477 Michigan Ave.
Detroit, Michigan 48266

RE: PRD 3801-92-103004; Industrial Robot for Trimming Excess Plastic, Machine Tool for Working Hard Plastic, Subheading 8465.92.00; Multipurpose Industrial Robot, Machine Not Specified or Included Elsewhere, Subheading 8479.89.90.

Dear Sir:

This is our decision on Application for Further Review of Protest No. 3801-92-103004, filed by the broker on behalf of TAC Manufacturing, Inc., against your action in classifying certain industrial robots from Japan. The entry under protest was liquidated on June 19, 1992, and this protest timely filed on September 17, 1992.

FACTS:

The device in question, designated the Fanue Robot 5, is an automatic machine that utilizes a milling tool to remove excess soft plastic trim in the manufacture of automotive safety airbag covers.

The machine was entered under a provision in heading 8465 for machine tools for working hard rubber, hard plastics or similar hard materials. On the belief that the machine was a multi-purpose industrial robot capable of using a variety of tools, you liquidated the entry under a provision in heading 8479 for machines having individual functions not specified elsewhere in chapter 84.

Responding to your request for more information, protestant now asserts the machine can perform the single specific function of trimming or removing (milling) excess soft plastic using a single tool. A submitted sample is of an automotive airbag cover. It is a hard plastic article with excess plastic trim on - 2 -
its surface area that must be removed. This excess material is soft and pliable. A sample of the milling tool was also submitted.

The provisions under consideration are as follows:

8465.92.00 Machine tools for working wood, cork, bone, hard rubber, hard plastics or similar hard materials: Planing, milling or molding (by cutting) machines...3 percent ad valorem

8477.80.00 Machinery for working rubber or plastics or for the manufacture of products from these materials: Other machinery...3.9 percent ad valorem

8479.89.90 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]:
Other...3.7 percent ad valorem

ISSUE:

Whether the Fanue Robot 5 is a machine tool of heading 8465 or machinery of heading 8477.

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.

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.

Initially, by its very terms heading 8479 does not apply if the goods are specified or included elsewhere in chapter 84. - 3 -

Therefore, if either of the remaining provisions cited above applies, that provision would prevail.

Relevant ENs at p. 1284 state that heading 8465 covers machine tools for the shaping or surface-working of hardened rubber, hard plastics and similar hard materials. It excludes machines for working materials which although referred to in the heading do not possess the characteristics of hard materials at the time work commences on them. The notes continue by stating that machines for cutting or slicing supple plastics or unhardened rubber are excluded. The notes refer such machines to heading 8477.

There is no indication that the robot in issue surface works the completed airbag cover, which is of hardened plastic; rather, the appearance of the submitted sample warrants the conclusion that the robot's only purpose is to remove excess plastic which is soft and pliable. Thus, heading 8465 does not apply.

HOLDING:

Under the authority of GRI 1, the Fanue Robot 5 is provided for in heading 8477. It is classifiable in subheading 8477.80.00, HTSUS, other machinery for working rubber or plastics. The rate of duty is 3.9 percent ad valorem.

Because the rate under this classification 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 mailed to the protestant, through his representative, as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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