HQ 0955395 - Scrap Chopper; Rotary Chopping Machine for Cutting Scrap into Uniform Lengths; Fabricated Steel Housing Enclosing Rotating Cutter Heads With Straight Cutting Knives; Machine Tool, Subheading 8461.50.00, Sawing or Cutting-Off Machine; Machine Not Specified or Included Elsewhere, Heading 8479 - United States International Trade Commision Rulings

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HQ 955395

FEBRUARY 14 1994

CLA-2:CO:R:C:M 955395 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

Mr. Robert Slomovitz
Chief, Machinery Branch, NIS Division
United States Customs Service
6 World Trade Center, Rm. 450
New York, NY 10048

RE: Scrap Chopper; Rotary Chopping Machine for Cutting Scrap into Uniform Lengths; Fabricated Steel Housing Enclosing Rotating Cutter Heads With Straight Cutting Knives; Machine Tool, Subheading 8461.50.00, Sawing or Cutting-Off Machine; Machine Not Specified or Included Elsewhere, Heading 8479

Dear Mr. Slomovitz:

This is in responce to your memorandum of November 16, 1993 (CLA-2-84:S:N:N1:104), concerning the classification of a scrap chopping machine from Japan.

FACTS:

The machine at issue is described as a rotary chopper which cuts metal scrap into pieces of uniform length. It consists of two housings of welded steel construction that open and close by hydraulic cylinder. Two rotating cutter heads, each containing four straight cutting knives 15.7 inches wide apiece, will be mounted in each housing.

The local import specialist proposes to classify the rotary chopper in subheading 8461.50.00, Harmonized Tariff Schedule of the United States (HTSUS), as a sawing or cutting-off machine tool. He notes that the machines of heading 8461 essentially function to remove metal in one way or another, which the rotary chopper does. Further, he maintains that there is no legal requirement that a device improve, advance or fabricate metal in order to qualify as a machine tool.

Your office maintains that the rotary chopper does not perform a traditional machine tool function and makes the following observations: while the term "machine tool" is defined under the Tariff Schedules of the United States (TSUS), there is - 2 -
no similar definition under the HTSUS, nor are the Explanatory Notes (ENs) helpful; the ENs list a number of machines in the machine tool provisions that perform no traditional machining function, i.e., assembling machines, gluing machines and presses for compressing metal scrap; the Customs Court has held under the TSUS that machine tools must "work" metal by fabricating it, or by improving or advancing it toward its intended use; a number of TSUS rulings classify similar machines under item 678.50, as machines not specially provided for; the machine tool builders trade association regards a machine as a machine tool only if it shapes a discrete, usable part.

The provisions under consideration are as follows:

8461.50.00 Machine tools for sawing or cutting-off ...4.4 percent

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

ISSUE:

Whether scrap chopping machines are machine tools for tariff purposes.

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.

Initially, relevant Explanatory Notes (ENs) state that heading 8479 is restricted to machinery having individual functions which is not excluded from chapter 84 by a legal note, is not covered more specifically by a heading in any other chapter of the HTSUS, and cannot be classified in any other particular heading of chapter 84 since no other heading covers it be reference to its method of functioning or by reference to its use or to the industry in which it is employed. From this, it is apparent that if scrap choppers are provided for in any of the machine tool provisions, they must be classified there.

The term "machine tool" is not defined either in the text of the HTSUS or in the ENs. The term was, however, defined under - 3 -
the TSUS, in part, to include "...any machine used for shaping or surface-working matals...whether by cutting away or otherwise removing the material or by changing its shape or form without removing any of it..." Schedule 6, Part 4, Subpart F, Headnote 1(a), TSUS. Prior judicial decisions involving nomenclature under the TSUS are not to be considered dispositive in interpreting equivalent provisions under the HTSUS. However, on a case-by-case basis, such decisions should be considered instructive, particularly where the nomenclature remains unchanged and no contrary legislative intent is evidenced.

In Pitney-Bowes, Inc. v. United States, C.D. 3116 (1967), the court examined headnote 1(a) in the context of certain embossing machines which changed the surface of metal plates by displacement without removing any metal. The court observed that from the sources used by the Tariff Commission in drafting headnote 1(a) it was clear there was no intention to take in all machines which in any way change the shape or form of metal regardless of their capability of shaping or surface-working, as those terms are understood in the field, or of producing other machines or of their being industrial equipment regarded by those in the field as machine tools. Lacking a statutory definition of the term "machine tool", therefore, it is appropriate in ascertaining the common meaning of the term to consult the relevant trade or industry. The file contains a letter, dated November 20, 1991, from The Association for Manufacturing Technology (formerly the Machine Tool Builders Association) which, in commenting on an oil filter crusher, notes that machine tools shape discrete, usable parts. In a case holding that machines for compressing metal scrap were not machine tools under the Tariff Act of 1930, the court cited with approval a line of cases in which certain devices held to be machine tools all performed "a task of fabrication or manufacture or production" of an article. Kurt Orban Co., Inc. v. United States, C.D. 2041, aff'd. C.A.D. 724 (1959). Further, the Classification Guide for Imports and Exports of Machine Tools, originally prepared by the NMTBA in 1980, contains verbal summaries of all machine tools listed in the TSUS. In every summary where the article or thing being worked on is referenced the term workpiece is used. This term is routinely defined as "a piece of work in process of manufacture."

From the cited court cases, it appears that machines that do not work metal by a process of fabrication, manufacture or improvement toward an intended end use would not have been regarded as "machine tools" under the TSUS. This conclusion, buttressed by the cited trade sources, makes it reasonable to conclude that such machines are not to be regarded as true machine tools under the HTSUS. Scrap chopping machines, therefore, appear to be an example that tariff provisions do not necessarily include everything that falls within their literal - 4 -
meaning. United States v. Andrew Fisher Cycle Co., Inc., 57 CCPA 102, C.A.D. 986 (1970).

We are mindful that presses for compressing metal scrap into bales are listed at (10) on p. 1280 of the ENs for heading 84.62, a provision for machine tools which work metal by changing its shape or form. However, because these machines are only listed and there is no narrative description of their method of operation, we conclude the ENs in this case are at best inconclusive.

HOLDING:

Scrap chopping machines, as described, are not conclusively shown to be machine tools for tariff purposes. Under the authority of GRI 1, they are provided for in heading 8479. Actual classification is in subheading 8479.89.90, HTSUS.

This decision is limited to the machine in isuue. Other machines are to be considered independently, on the basis of the particular facts presented.

Sincerely,

John Durant, Director
Commercial Rulings Division

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