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HQ 963324




JUNE 27, 2000

CLA-2 RR:CR:GC 963324 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8460.90.80

Port Director of Customs
8337 NE Alderwood Road, Rm 200
Portland, OR 97220

RE: Protest 2904-99-100169; Profile Grinder

Dear Port Director:

This is our decision on Protest 2904-99-100169, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a hydraulic profile grinder. The entry under protest was liquidated on October 8, 1999, and this protest timely filed on October 18, 1999.

FACTS:

The article at issue is a profile grinder, specially designed for use on railroad tracks. Measuring 40 inches x 10 inches x 28 inches and weighing 80 pounds, it incorporates a hydraulically powered motor that rotates a grinding wheel mounted in a tubular frame midway between two wheels. Its function is to smooth rough spots and burrs on railway tracks. The wheels appear designed primarily to balance the device on the rails as the grinding wheel is lowered manually onto the rails by means of a hand wheel on the top of the tool. The wheel is adjusted manually, as necessary, while the tool is in operation.

The grinder was entered under a provision in heading 8604, HTSUS, as a railway or tramway maintenance or service vehicle. The device was found to be a machine tool for surface-finishing metal by grinding, and the entry liquidated under an appropriate provision in heading 8460, HTSUS. On protest, counsel for the importer abandons this claim and asserts that the device is provided for in a provision of heading 8467, HTSUS, as a hydraulic tool for working in the hand, with self-contained non-electric motor, suitable
for metal working. The device is said to possess all of the salient characteristics of tools of heading 8467, i.e., it is designed to be held in the hand during use, it can be lifted and moved by hand by the user, in particular while work is in progress, and it is designed to be controlled and directed by hand during operation.

The HTSUS provisions under consideration are as follows:

8460 Machine tools forgrindingor otherwise finishing metalby means of grinding stones:

8460.90 Other:

8460.90.80 Other

8467 Tools for working in the hand, pneumatic, hydraulic or with self-contained nonelectric motor, and parts thereof:

Other tools:

8467.89 Other:

8467.89.50 Other

8604.00.00 Railway or tramway maintenance or service vehicles, whether or not self-propelled:

ISSUE:

Whether the profile grinder is a machine tool for grinding or a tool for working in the hand.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified 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. Though not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Initially, although abandoned as a claim by counsel for the importer, we believe some discussion of the entered provision in heading 8604, HTSUS, is warranted. Relevant ENs on p. 1536 in part indicate that to be covered by that heading a device must qualify as a vehicle, it must be specially designed for use in servicing or maintenance of the permanent way, and it may or may not be self-propelled. The profile grinder is prima facie within this description. However, the ENs exclude from heading 8604 machines mounted on simple wheeled platforms and not on true railway or tramway underframes not constituting, therefore, true railway or tramway rolling-stock. The profile grinder is mounted in a tubular frame on simple roller-type wheels which is the equivalent of a simple wheeled platform. There is no indication that this configuration constitutes a true railway underframe. We conclude that the profile grinder is excluded from heading 8604.

In addition to the express language of heading 8460, which includes machine tools for grinding utilizing grinding stones, the ENs on p. 1379 include in that heading grinding machines of different types to include surface grinding machines. However, the ENs on p. 1380 exclude from that heading tools for working in the hand of heading 8467. It is therefore necessary to examine the terms of heading 8467 and its attendant ENs. The ENs on p. 1394 indicate heading 8467 covers tools only if for working in the hand, which mean those designed to be held in the hand during use, and also heavier tools which are portable, that is, which can be lifted and moved by hand by the user, in particular while work is in progress, and which are designed to be controlled and directed by hand during operation. Further, the ENs state that to obviate the fatigue of taking their full weight during operation, tools of heading 8467 may be used with auxiliary supporting devices such as tripods, jacklegs and overhead lifting tackle. The ENs exclude from heading 8467 tools with provision for running on rails. While the grinding wheel is lowered onto the track by means of a hand wheel, it is not designed to be held in the hand during use. Moreover, weighing 80 pounds, it cannot be readily lifted and moved by hand by the user while work is in progress, nor is it controlled and directed by hand during operation. In addition, there is no indication in the submitted literature that the grinder is designed to be used with auxiliary supporting devices. Finally, while the wheels on either end of the tubular frame appear to be primarily for purposes of securing and stabilizing the grinder during operation, they also permit the operator to move the grinder from point to point along the rails. An analysis of these ENs leads us to conclude that the profile grinder is not covered by heading 8467.

HOLDING:

Under the authority of GRI 1, the hydraulic profile grinder is provided for in heading 8460. It is classifiable in subheading 8460.90.80, HTSUS. 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 are to 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 the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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