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HQ 966580




September 11, 2003

CLA-2 RR:CR:GC 966580 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8429.40.00

Mr. Ted Adair

Bartell Industries, Inc.
31 Sun Pac Blvd.
Brampton, Ontario, Canada L65 5P6

RE: Modification of NY 842039; vibratory plates and rammers

Dear Mr. Adair:

This letter is pursuant to U.S. Customs and Border Protection (Customs) reconsideration of New York ruling letter (NY) 842039, dated June 15, 1989, which was issued to you by the Director, National Commodity Specialist Division, New York, with respect to the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of several articles, including vibratory plates and rammers. After review of NY 842039, Customs has determined that the classification of vibratory plates and rammers under subheading 8467.89.50, HTSUS, was incorrect.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), a notice was published on August 6, 2003, in the Customs Bulletin, Volume 37, Number 32, proposing to modify NY 842039. No comments were received in response to this notice.

FACTS:

In NY 842039, Customs classified power trowels, vibratory plates and rammers. The vibratory plates and rammers are self-propelled, gasoline-powered machines designed for compressing earth, clay or gravel prior to the installation of concrete. In NY 842039, Customs classified the subject vibratory plates and rammers under subheading 8467.89.50, HTSUS, which provides for “Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor, and parts thereof: Other tools: Other: Other.”

ISSUE:

What is the proper tariff classification for self-propelled vibratory plates and rammers?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. 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. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers: 8429.40.00 Tamping machines and road rollers

Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores; pile-drivers and pile-extractors; snowplows and snowblowers: Other machinery, not self-propelled:
8430.61.00 Tamping or compacting machinery

Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor, and parts thereof: Other tools:
8467.89 Other:
8467.89.50 Other:

Relevant ENs indicate that the machines of heading 8429, HTSUS, include self-propelled tamping machines which are used in road building. EN 84.29 states that:

The heading covers a number of earth digging, excavating or compacting machines which are explicitly cited in the heading and which have in common the fact that they are all self-propelled.

The provisions of Explanatory Note to heading 84.30 relating to self-propelled and multi-function machines apply, mutandis mutatis, to the self-propelled machinery of this heading, which includes the following:

* * * (H) Tamping machines as used in road making, for packing rail-road ballast, etc. . . . .

EN 84.30 states that heading 8430, HTSUS, classifies tamping machines that are not self-propelled. However, the instant vibratory plates and rammers are self-propelled tamping machines and are specifically classified under heading 8429, HTSUS. See HQ 089015, dated July 26, 1991.

According to GRI 3(a), the merchandise in question must be classified pursuant to the heading providing the most specific description. See Better Home Plastics Corp v. United States, 20 C.I.T. 221, 222; 916 F. Supp. 1265, 1266 (1996). Moreover, EN 3(a)(IV)(a) states in pertinent part that “a description by name is more descriptive than a description by class.” Indeed, the Court of Appeals for the Federal Circuit states that under the rule of specificity, “the court w[ill] look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty.” See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1380 (Fed. Cir. 1999) (citing Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998)). The term “self-propelled tamping machines” would appear to be more descriptive of the machines under consideration than the term “machines for working in the hand” because the former term is more restrictive and has terms that are more difficult to satisfy.

The ENs to heading 8467 provide, in pertinent part, that:

The heading covers such tools only if for working in the hand. The expression "tools for working in the hand" means tools designed to be held in the hand during use, and also heavier tools (such as earth rammers) 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 also designed to be controlled and directed by hand during operation. To obviate the fatigue of taking their full weight during operation they may be used with auxiliary supporting devices (e.g., tripods, jacklegs, overhead lifting tackle). . . .

The instant machines should be classified under subheading 8429.40.00, HTSUS, as self-propelled tamping machines, according to GRI 3(a). In this case, subheading 8429.40.00, HTSUS, is the provision with the requirements that are more difficult to satisfy and that describes the instant vibratory plates and rammers with the greater degree of accuracy and certainty. Heading 8467, HTSUS, tools for working in the hand, covers a wide range of tools for working in the hand. Heading 8429, HTSUS, on the other hand covers a narrower range of earth digging, excavating or compacting machines that are explicitly cited in the heading text. Most importantly, the machines must be self-propelled. We believe that self-propelled earth compacting rammers are more accurately and specifically described by subheading 8429.40.00, HTSUS.

HOLDING:

In accordance with the above discussion, the correct classification for self-propelled vibratory plates and rammers is subheading 8429.40.00, HTSUS, which provides for “Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers: Tamping machines and road rollers.”

EFFECT ON OTHER RULINGS:

NY 842039 is MODIFIED with respect to the vibratory plate and rammer. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon
Director,

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