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HQ 963850




NOVEMBER 16, 2000

CLA-2 RR:CR:GC 963850 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8431.49.90

Port Director of Customs
40 S. Gay Street
Baltimore, MD 21202

RE: Protest 1303-99-100260; Transfer Gear Box With Drive Axle

Dear Port Director:

This is our decision on Protest 1303-99-100260, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a transfer gear box with drive axle. The entry under protest was liquidated on June 18, 1999, and this protest timely filed on September 13, 1999.

FACTS:

The merchandise under protest is an axle for a road compacting machine or vibratory soil compactor. It is listed on the Customs Form 6445 as a transfer gear box with drive axle, part # 59075168. A letter from counsel for the protestant, dated September 10, 1999, describes the article as a rigid, planetary type axle incorporating a transfer gear box that provides drive reduction for the compactor and a hydraulically-operated emergency/parking brake system. The Customs Form 6445 also lists a drive steer axle, part # 59005926, but the classification of that article is not at issue.

The drive axle was entered under a provision of heading 8431, HTSUS, as parts suitable for use solely or principally with machinery of heading 8426, 8429 or 8430. Because the axle contained or incorporated a gear box, your office liquidated the entry under a provision of heading 8483, HTSUS, as other speed changers, noting that this provision is more specific than the entered provision.

The HTSUS provisions under consideration are as follows:

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

Other:

Other

8483 gear boxes and other speed changers, including torque converters:

8483.40.50 Other

ISSUE:

Whether the transfer gear box with drive axle, part # 59075168, is a good included in heading 8483, or a part classifiable with the machine or machines with which it is solely or principally used.

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 HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS 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).

We agree with counsel for the protestant that vibratory soil compactors are provided for in heading 8429, HTSUS, which includes tamping machines and road rollers. We also agree that axles for road compacting machines are parts of such
machines, and are classifiable in accordance with Section XVI, Note 2, HTSUS. Parts which are goods included in any of the headings of Chapters 84 and 85 are in all cases to be classified in their respective headings. See Note 2(a). Other parts, if suitable for use solely or principally with a particular machine, or with a number of machines of the same heading, are to be classified with the machines of that kind. See Note 2(b).

Counsel cites as controlling authority NY E84933, dated July 26, 1999, which classified an axle assembly for vibratory soil compactors in subheading 8431.49.90, HTSUS. The axle assembly in that ruling featured only an integral emergency/parking brake system, while the axle under protest here also incorporates a transfer gear box. Nevertheless, while the merchandise in NY E84933 is materially different from the subject transfer gear box with axle drive, the ruling raises the issue of whether the transfer gear box with drive axle, part # 59075168, is a good included in heading 8483, in accordance with Section XVI, Note 2(a). We believe that it is not.

The liquidated provision in subheading 8483.40.50 was apparently based on HQ 950930, dated April 22, 1992. The merchandise which was the subject of that ruling was identified as a fixed ratio transmission coupled to an electric motor on the input shaft side and to the drive wheels on the output side, and gears. The motor provided rotational input speed the direction of which the gears changed into two 90 degree outputs. This is the transmitted power that turns the wheels of a forklift truck. Noting that while the article possessed certain other components, HQ 950930 reasoned that the principal function of the device, characterized in the ruling as a drive unit, was to transmit power from the engine of a forklift truck to the drive wheels, a function ascribed in the heading 84.83 ENs to a gear box. The ENs on p. 1434 state, in part, that the goods of heading 84.83 include certain internal parts of a machine used to transmit power to the various parts of the same machine. An article consisting of a rigid, planetary type axle incorporating a transfer gear box would meet this description. However, the integration of these power-transmitting components with a hydraulically-operated emergency/parking brake system, all within the same structural axle housing, results in an article that, in terms of functionality, goes beyond the mere transmission of power. The article under protest, transfer gear box with drive axle, is not a good included in heading 8483 under Note 2(a). Lacking other information to the contrary, it appears that the transfer gear box with drive axle is a part principally, if not solely used with vibratory soil compacting machines of heading 8429. It is provided for in heading 8431 in accordance with Note 2(b).

HOLDING:

Under the authority of GRI 1, the transfer gear box with drive axle, part # 59075168, is provided for in heading 8431. It is classifiable in subheading 8431.49.90, HTSUS.

The protest should be ALLOWED. 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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