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HQ 960449




May 7, 1997

CLA-2 RR:TC:MM 960449

CATEGORY: CLASSIFICATION

TARIFF NO.: 8428.90.00; 7308.90.95

Port Director of Customs
35 West Service Road
Champlain, NY 12919

RE: IA 7/97; Mast Climbing Work Platforms; Explanatory Note 84.28;
Section XV, Note 1(f); HQ 082655; 7308.40.00

Dear Port Director:

This is in response to your memorandum of March 5, 1997 (RULINGS:REQUESTS:IA CLN), relating to a request for internal advice submitted by Norman G. Jensen, Inc., on February 13, 1997, on behalf of Fraco Products, concerning the classification of mast climbing work platforms under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of mast climbing work platforms(model nos. FRSM 3000 and FRSM 6000), also referred to as elevator platforms and mobile scaffolding. The platforms are mechanically operated and are used in place of conventional construction scaffolding. They consist of a motorized platform which moves up and down on one or two masts by means of a hydraulic system. The mast is composed of a series of non-mechanical steel sections which are stacked one above the other until the desired height is reached. The platform is composed of non-mechanical interlocking cubes which are attached side by side to form a horizontal working surface of variable length.

The FRSM 3000 features a mobile trailer incorporating stabilizers so that it can be towed to a work site. It can raise workmen and/or materials weighing up to 3000 pounds to a maximum height of 150 feet at a rate of 10 feet per minute. The FRSM 6000 is similar in operation , and is capable of elevating up to 12,000 pounds at a speed of 3 feet per minute. Because it can be used with dual masts which can be anchored to a structure undergoing construction, it can be used to reach a greater height.

ISSUE:

Whether the mast climbing work platforms are classifiable under subheading 7308.40.00, HTSUS, as equipment for scaffolding, under subheading 8428.10.00, HTSUS, as passenger or freight elevators other than continuous action, or under subheading 8428.90.00, as other lifting, handling, loading, or unloading machinery.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The subheadings under consideration are as follows:

7308.40.00: [s]tructures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel: [e]quipment for scaffolding, shuttering, propping or pit- propping.

The general, column one rate of duty for goods classifiable under this provision is 4 percent ad valorem.

7308.90.95: . . . : [o]ther: [o]ther: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 4 percent ad valorem.

8428.10.00: [o]ther lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics): [p]assenger or freight elevators other than continuous action; skip hoists.

The general, column one rate of duty for goods classifiable under this provision is 0.8 percent ad valorem.

8428.90.00: . . . : [o]ther machinery.

The general, column one rate of duty for goods classifiable under this provision is 0.8 percent ad valorem.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 84.28 (pp. 1296 - 1297) states that:

[w]ith the exception of the lifting and handling machinery of headings 84.25 to
84.27, this heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.). They remain here even if specialised for a particular industry, for agriculture, metallurgy, etc. . .

The heading covers lifting or handling machines usually based on pulley, winch or jacking systems, and often including large proportions of static structural steelwork, etc.

These static structural elements (e.g., pylons specialised for teleferics, etc.) are classified in this heading when they are presented as parts of a more or less complete handling machine.

When presented separately, they are classified in heading 84.31 provided they are fitted or designed to be fitted with the mechanical features essential for the operation of the moving parts of the complete installation (wheels, rollers, pulleys, running or guide rails, etc.). Otherwise these structural elements are classified in heading 73.08.

These more complex machines include:

(I) INTERMITTENT ACTION MACHINES

(D) Lifts are usually operated by winch and cable, or by rams worked by water, air or oil. They are used for raising or lowering a passenger cage or goods platform between vertical guide bars, and are generally fitted with counter-balance weights. . .

Based upon Explanatory Note 84.28, it is our position that the mast climbing work platforms are classifiable under heading 8428, HTSUS. They are machinery for the mechanical lifting and handling of materials, goods, and workmen, and they are operated by a hydraulic system and include large proportions of structural steelwork.

However, the platforms are not classifiable under subheading 8428.10.00, HTSUS, as they do not meet the description of lifts given in Explanatory Note 84.28. It is our understanding from the literature provided by the importer that the platforms do not raise or lower between vertical guide bars, nor do they possess counterweights or other features of lifts. Therefore, the platforms are precluded from classification under subheading 8428.10.00, HTSUS, and are classifiable under subheading 8428.90.00, HTSUS.

Section XV, note 1(f), HTSUS, states that:

[t]his section does not cover:

(f) Articles of section XVI (machinery, mechanical appliances and electrical goods).

Therefore, based upon the above note, because the platforms are classifiable under heading 8428, HTSUS, they are precluded from classification under heading 7308, HTSUS.

It is our understanding from the provided literature that the platforms may be imported into the U.S. in a complete but unassembled manner.

GRI 2(a) states that:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.
It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

Therefore, based upon GRI 2(a), even if the platforms are imported in a complete but unassembled manner, they will be classifiable under subheading 8428.90.00, HTSUS.

We note that, based upon the section of Explanatory Note 84.28 dealing with structural elements presented separately, if extra or additional mast or platform sections for FRSM 3000 or FRSM 6000 are imported separately, they will be classifiable under subheading 7308.90.95, HTSUS, as other parts of structures, because they are not fitted with or designed to be fitted with mechanical elements. See HQ 082655, dated July 17, 1989.

HOLDING:

The mast climbing work platforms are classifiable under subheading 8428.90.00, as other lifting, handling, loading, or unloading machinery.

If extra or additional mast or platform sections for FRSM 3000 or FRSM 6000 are imported separately, they will be classifiable under subheading 7308.90.95, HTSUS, as other parts of structures.

This decision should be mailed by your office to the internal advice requester no later than sixty (60) days from the date of this letter. On that date, 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 the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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