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HQ 955700




DECEMBER 8, 1994

CLA-2:CO:R:C:M 955700 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8428.39.00, 8428.90.00

District Director of Customs
423 Canal Street, Rm. 245
New Orleans, LA. 70130

RE: PRD 2002-93-101453; Parts of Casting Machines, Subheading 8454.90.00; Slip Op. 93-161; Motors, Heading 8412, Sprayers, Heading 8424, Conveyors, Other Handling Machinery, Heading 8428, Gear Boxes, Speed Changers, Heading 8483, Section XVI, Note 2(a) and General Explanatory Note; HQ 952019, HQ 952743, HQ 954942

Dear District Director:

This is our decision on Protest No. 2002-93-101453, filed against your action in classifying machines, components and apparatus from Japan used in a continuous steel caster. The merchandise was imported in multiple shipments and the entries were liquidated on June 4 and July 2, 1993. This protest was timely filed on August 31, 1993.

FACTS:

The approximately one hundred thirteen (113) articles under protest were entered under the duty-free provision in heading 8454 for parts of casting machines. The import specialist noted that most of these components were provided for in provisions believed to be more specific than the entered provision, and liquidated the entries accordingly. For example, various storage racks, stands and platforms were reclassified as articles of iron or steel under heading 7326; drive motors were reclassified under heading 8412; machinery for weighing both the molten metal and the cast product under heading 8423; piping for sprayers as parts under heading 8424; ladle turret, tundish transfer car, lifting beams and roller tables as conveyors and other material handling devices under heading 8428, and related rollers and roll assemblies as parts, under heading 8431; drive units, gear couplings and reducers under heading 8483; deburring tables as machine tools under heading 8460; molds and mold covers as molds for metal under heading 8480; various hand tools as wrenches under heading 8204; signs and name plates under heading 8310; and quality control apparatus as measuring and checking instruments in heading 9031. - 2 -

The provisions under consideration include but are not limited to the following:

7326 Other articles of iron or steel:

7326.90 Other:

Other:

7326.90.90 Other...5.7 percent

8412 Other engines and motors:

Hydraulic power engines and motors:

8412.21.00 Linear acting (cylinders)
...3.4 percent

8424 Mechanical appliances for spraying liquids or powders; parts thereof:

8424.90 Parts:

8424.90.90 Other...3.7 percent

8428 Other lifting, handling, loading or unloading machinery:

8428.39.00 Other conveyors...2 percent

8428.90.00 Other machinery...2 percent

8431 Parts suitable for use solely or principally with the machinery of heading [8428]:

8431.39.00 Other...2 percent

8454 Casting machines and parts thereof:

8454.90.0 Parts...Free - 3 -

8480 Molding boxes for metal foundry; mold bases: molds for metal (other than ingot molds), metal carbides glass, etc.:

Molds for metal or metal carbides:

8480.49.00 Other types...3.9 percent

8483 Gear boxes and other speed changers:

8483.40.50 Other...2.5 percent

9031 Measuring and checking instruments, appliances and machines:

9031.80.00 Other instruments, appliances and machines...4.9 percent

ISSUE:

Whether the machines, components and apparatus are goods included in headings of chapters 84 and 85; whether they are provided for as parts of casting machines in heading 8454.

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, 54 Fed. Reg. 35127, 35128 (Aug. 23,

Counsel for protestant maintains that these components are classified as parts of casting machines, in subheading 8454.90.00, HTSUS, for two reasons. First, he argues that because these components are uniquely designed for use in a specific continuous caster, they meet the sole or principal use test for parts in Additional U.S. Rule 1(c), HTSUS. Second, based on a 1993 court decision on substantially similar merchandise under the HTSUS predecessor tariff code, the Tariff Schedules of the United States (TSUS), counsel contends that the provisions under which Customs classified the components in this case are not "specific" for purposes of Rule 1(c).

It is important to note that the Additional U.S. Rules of Interpretation apply in the absence of special language or context which otherwise requires. In accordance with GRI 1, the terms of the headings and any relative section or chapter notes are the first and primary consideration in classifying merchandise under the HTSUS. Accordingly, Customs has consistently held that goods which are parts of machines or apparatus of chapters 84 and 85 are to be classified in accordance with Section XVI, Note 2, HTSUS. HQ 952019, dated March 18, 1993, and related cases. This is special language or context that precludes the application of Rule 1(c). Parts which are goods included in any of the headings of chapters 84 or 85 are in all cases to be classified in their respective headings (emphasis added). Note 2(a). Other parts suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading, are to be classified with the machines of that kind. Note 2(b). Therefore, as to counsel's first argument, notwithstanding the machines and components under protest may be principally used with casting machines, they are to be classified in the heading(s) under which they are included.

Counsel's second argument is based on the court's decision in Mitsubishi International Corp. v. United States, 17 CIT , Slip Op. 93-161, decided August 12, 1993. In that case machines, components and apparatus for casting machines, similar to the ones in this protest, were held to be classified in item 674.10, TSUS, as parts of casting machines. The court rejected item 664.10, TSUS, a provision for other lifting, handling, loading or unloading machinery, as relied on by Customs for many of the material handling devices, as not satisfying the specificity requirement of General Rule of Interpretation 10(ij), TSUS. In addition, the court rejected the remaining "specific" provisions relied on by Customs because the machines and components were said to possess significant additional features and, therefore, were "more than" the goods encompassed by the terms of the liquidated provisions. Judicial decisions under the TSUS are to be considered instructive in interpreting the HTS only where the nomenclature remains unchanged and no dissimilar interpretation is required by the text of the HTS. While TSUS Rule 10(ij) - 5 -
states that a parts provision shall not prevail over a specific provision, there is no such specificity requirement in Note 2(a), which requires only that a part be a good "included" in a heading of chapter 84 or 85. Therefore, because there has been a change in the text of the HTSUS, Mitsubishi is not considered instructive here.

As to the applicability of heading 8428, the relevant EN on Note 2, at p. 1131, lists lifting and handling machinery (heading 84.25, 84.26 or 84.28) as articles that in all cases are to be classified in their own appropriate heading even if specially designed to work as part of a specific machine. Except for the following, counsel has not sufficiently demonstrated that the remaining machines and components possess a significant additional function or functions sufficient to remove them from "inclusion" in the provisions under which they were classified in liquidation.

The weighing machinery classified eo nomine in subheading 8423.82.00 is in fact a roller conveyor to which the weighing machine was added after importation. This article is to be reclassified in subheading 8428.39.00. Under Note 2(b) the tundish overflow troughs, storage racks, stands and platforms classified in subheading 7326.90.90 are to be reclassified in subheading 8454.90.00. The cooling fans liquidated under subheading 7326.90.90 are to be reclassified eo nomine under subheading 8414.59.60. The molds cannot be classified in subheading 8480.49.00 as liquidated. HQ 952743, dated February 16, 1993. They are to reclassified in subheading 8454.90.00. Reducers for the torch roller tables and the torch runout tables are not gearboxes of subheading 8483.40.50; rather, because they are only rollers with couplings attached they are classified in subheading 8431.39.00.

HOLDING:

Under the authority of GRI 1, the tundish overflow troughs, storage racks, stands and platforms and the molds are to be reclassified under subheading 8454.90.00. The protest is ALLOWED as to this merchandise. The roller conveyor, thought initially to be weighing machinery, the cooling fans, and the reducers with couplings for torch roller tables and torch runout tables are to be reclassified as indicated. Because the rates under these provisions are less than the liquidated rates but more than the claimed rates the protest is ALLOWED IN PART as to this merchandise based on the reclassifications. As to the remaining merchandise the protest is DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the - 6 -
date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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