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HQ 958580




FEBRUARY 13, 1996

CLA-2 RR:TC:MM 958580 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7326.90.85

Port Director of Customs
2nd. & Chestnut Sts.
Philadelphia, PA 19106

RE: PRD 1101-95-100537; Sprung-Blade Scrapers, Machinery, Other Excavating, Extracting or Boring Machinery, Heading 8430; Parts Suitable for Use Solely or Principally With Conveyors of Heading 8428; Articles of Iron or Steel, Heading 7326

Dear Port Director:

This is our decision on Protest 1101-95-100537, filed against your classification of sprung-blade scrapers made in Germany. The entries were liquidated on April 7, May 5, 12 and 19, and June 2, 9 and 23, 1995, and this protest timely filed on June 26, 1995.

FACTS:

The merchandise under protest is the Type C2 Sprung-Blade Scraper. The scraper consists of a series of individual iron or steel scraper blades, each with a sharpened blade or edge, used to clean residues and debris from coal and other industrial conveyors. These scrapers are affixed to the pivoting axle of a cleaning module that is bolted to the underside of the conveyor. A number of scraper blades, each incorporating a rubber torsion spring unit, can be affixed to the axle sufficient to accommodate conveyors with belts from 24 to 78 inches in width. The scrapers are inclined against the direction of belt travel and can be tensioned to the conveyor frame by means of a self-adjusting elasto-mount. The rubber torsion spring unit incorporated into each individual blade insures the blades make uniform contact with the belt surface.

Protestant maintains these scrapers are parts suitable for use solely or principally with conveyors of heading 8428, and, therefore, are classifiable in subheading 8431.39.10 (now 00), Harmonized Tariff Schedule of the United States (HTSUS). Alternatively, protestant claims the scrapers are machinery, and thus are - 2 -
classifiable in subheading 8430.62, HTSUS, a provision for other machinery, not self-propelled, scrapers. You have determined that these scrapers are not integral working parts of conveyors, nor are they machinery in a tariff sense. You have liquidated the 1994 entries as other articles of iron or steel, under subheading 7326.90.90, HTSUS, in 1994, and the 1995 entries under subheading 7326.90.85.

The provisions under consideration are as follows:

7326 Other articles of iron or steel:

7326.90 Other:

7326.90.85 Other...4.6 percent ad valorem

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

Other machinery, not self-propelled:

8430.62.00 Scrapers...1.5 percent ad valorem

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

Of machinery of heading 8428:

8431.39.00 Other...1.2 percent

ISSUE:

Whether the Type C2 Sprung-Blade Scraper is part of a conveyor for tariff purposes; whether it is machinery, not self-propelled.

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 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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Regarding the primary claim under subheading 8431.39.10, parts that are not goods included in any heading of Chapter 84 or Chapter 85 that are solely or principally used 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, or in heading 8431, among others, as appropriate. Section XVI, Note 2(b), HTSUS. Articles are "parts" for tariff purposes if they are integral, constituent and component parts necessary to the completion of the article with which they are used. Technicolor Videocassette, Inc. v. United States, Slip Op. 94-43 (Ct. Int'l Trade, decided March 10, 1994), aff'd. Appeal No. 94-1300 (Fed. Cir., January 23, 1995). Relevant ENs state, at pp. 1197 and 1198, that heading 84.28 covers a wide range of machinery for the mechanical handling of materials, goods, etc. They remain in heading 84.28 even if specialized for a particular industry. Among the machines described in paragraph (B) under (II) CONTINUOUS ACTION MACHINES are conveyors which are used for moving goods, usually in a horizontal direction, sometimes over very long distances (in mines, quarries, etc.). They include:

(1) Conveyors operated by continuously-moving carrying or pushing elements, e.g., bucket, tray or pan type conveyors; scraper or screw conveyors (in which the materials are forced along a trough by a push plate or worm respectively); band, belt, slat, chain, etc., conveyors.

(2) Conveyors consisting of a train of motor-driven rollers (e.g., as used for feeding steel into cogging mills). The heading also covers roller conveyors, not power-driven, usually mounted on bearings - 4 -

(e.g., horizontal roller runways for maneuvering crates, etc., and gravity roller conveyors), but it excludes similar equipment without rollers, e.g., straight, curved or spiral sliding chutes (heading 73.08, 73.25 or 73.26 according to type).

(3) Vibrator or shaker conveyors operated by vibratory or reciprocating movements of the trough supporting the goods.

The schematic submitted with this protest indicates the conveyors with which these sprung-blade scrapers are used most closely resemble those described in (1), above. However, the sprung-blade conveyors are not integral to the operation of the conveyor which are complete and fully functional without them. The sprung-blade scrapers function as accessory items to remove extraneous materials from the conveyor belt. We conclude the sprung-blade scrapers are not parts for purposes of heading 8431.

Regarding the alternative claim under subheading 8430.62.00, protestant maintains the sprung-blade scrapers are designed in compliance with strict Federal safety requirements and are of a sufficient refinement to be regarded as machinery, for tariff purposes. As previously stated, each individual blade of the sprung-blade scraper is mounted on a uniquely designed element which incorporates a rubber torsion spring unit. Notwithstanding the fact these spring units impart a degree of mechanical capability to the scrapers, their function is to insure maximum surface contact of the each blade's sharpened edge with the surface of the conveyor belt. There is no evidence that the sprung-blade scrapers perform any of the functions listed in the text of heading 8430. Therefore, the claim under subheading 8430.62.00 cannot be sustained.

HOLDING:

Under the authority of GRI 1, the Type C2 Sprung-Blade Scrapers are provided for in heading 7326. They are classifiable in subheading 7326.90.90 or subheading 7326.90.85, HTSUS, as appropriate.

The protest should be 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 date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing - 5 -
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
Tariff Classification

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