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HQ 967072




June 30, 2004

CLA-2: RR:CR:TE 967072 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8464.90.9090

Port Director

Port of Chicago

Customs and Border Protection

610 S. Canal Street
Room 306
Chicago, IL 60607

RE: Application for Further Review of Protest 3901-04-100384

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3901-04-100384, filed by Hodes, Keating & Pilon, on behalf of Unilock Chicago, Inc.

The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of a “KBH Tumbling System” under subheading 8464.90.9090 of the Harmonized Tariff Schedule of the United States (HTSUS) which provides for machine tools for working stone, ceramics, concrete, asbestos-cement or like mineral materials or for cold working glass: Other: Other, Other with a rate of duty of 2% ad valorem. Liquidation of the entry occurred on December 5, 2003. Protestant entered the merchandise subject to this protest as a crushing or grinding machine in subheading 8474.20.0070, HTSUS, free of duty.

Protestant filed a protest with an application for further review on March 4, 2004, challenging the classification, rate, amount of duties chargeable, and the liquidation of the entry at issue. The importer’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

Protestant has alleged the decision against which the protest is filed is inconsistent with a number of rulings with respect to substantially similar merchandise including HQ 964337, dated September 4, 2001 and NY H87910, dated February 12, 2002. Thus, further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25.

FACTS:

The merchandise at issue is known as the “KBH Tumbling System”. It is used for the treatment of cured/finished concrete wall and paving stones. The KBH Tumbling System is composed of a delivery system which places the stones onto a flat conveyor belt that feeds the stones into a rotating drum. Inside the drum, the stones are tumbled so that the edges are chipped off creating an appearance of aged or natural stone. After the stones have been tumbled, they are placed on a vibrating table and sorted into a collecting matrix. The sorted stones are fed into a collecting conveyor system which allocates the product to a clap device that stacks the product into packages or bundles.

ISSUE:

Whether the KBH Tumbling System is classified as other machine tools for working stone, ceramics or concrete in subheading 8464.90.9090, HTSUS, or as machinery for sorting, crushing or grinding earth, stone, ores, or mineral substances in subheading 8474.20.0070, HTSUS?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

Protestant argues that the KBH Tumbling System is classified in subheading 8474.20.0070, HTSUS, which provides for:

Machinery for sorting, screening, separating, washing, crushing, grinding, mixing or kneading earth, stone, ores or other mineral substances, in solid (including powder or paste) form; machinery for agglomerating, shaping or molding solid mineral fuels, ceramic paste, unhardened cements, plastering materials or other mineral products in powder or paste form; machines for forming foundry molds of sand; parts thereof: Crushing or grinding machines: Stationary: Other.

The E.N.’s to heading 8474, HTSUS, provide in relevant part:

This heading covers:

Machinery of a kind used, mainly in the extractive industries, for the treatment (sorting, screening, separating, washing, crushing, grinding, mixing or kneading) of solid mineral products (in general the products of Section V of the Nomenclature) such as earth (including earth colours), clay, stone, ores, mineral fuels, mineral fertilisers, slag cement or concrete.

(B) Crushing or grinding machines. These include:

(3) Drum crushers. The material is lifted to the top of a drum and is broken by falling on to the bottom.

(7) Ball or rod mills. These consist essentially of a rotating drum containing a number of balls or short rods (e.g., of steel or porcelain). The material is placed in the rotating drum and is crushed or ground by the action of the balls or rods.

Protestant contends the E.N’s to 8474, HTSUS, support classification of the KBH Tumbling System in subheading 8474.20.0070, HTSUS, because it is used for the treatment of solid mineral products, namely concrete in the form of concrete paving stones which are treated by grinding and chipping down the edges.

That portion of the E.N.’s to which protestant refers qualifies that the machinery is of a kind primarily used in the extractive industries. Protestant’s merchandise is not used mainly in the extractive industries nor is it used to treat slag cement or concrete. Rather the KBH Tumbling System is used to treat concrete paving stones.

Protestant alleges that the KBH Tumbling System is prima facie classifiable as a “crushing and grinding machine” as it acts as a grinding and sorting machine by tumbling the concrete wall and paving stones together. Protestant notes that the term “grinding” is not provided for in the HTSUS, but offers the following definition of “grind” from Webster’s Third New International Dictionary “2: to wear downby friction” Protestant argues that the KBH Tumbling System accomplishes this type of action. Protestant further argues that the KBH Tumbling System is similar in purpose, construction and action to the drum crusher and ball or rod mill listed in the E.N.’s to 8474 as crushing and grinding machines.

The KBH Tumbling System does not crush or grind the wall and paving stones. The stones are tumbled together as part of the finishing process to chip the edges and achieve the desired appearance. The stones are not worn down by friction, they are finished by chipping. Moreover, Exclusionary Note (d) in the E.N. to heading 8474, HTSUS, provides that the heading does not include machine-tools for working stone or other materials, or for cold working glass.

Additionally, protestant states that the KBH Tumbling System is more in the nature of machines held by CBP to be Heading 8474 grinding machines rather than machine tools of heading 8464. In support, protestant cites to New York Ruling (NY) H87910, dated February 12, 2002, in which we classified a mineral grinding machine under subheading 8474.20, HTSUS, and Headquarters Ruling (HQ) 964337, dated September 4, 2001, which classified the parts and components of a ball mill in heading 8503, HTSUS. The grinding machines referred to in both of the aforementioned rulings crush mineral or ore into small particles or powder. The KBH Tumbling System does not crush the stones into particles or powder, it finishes the edges by chipping.

Heading 8464, HTSUS, provides for “machine tools for working stone, ceramics, concrete, asbestos-cement or like mineral materials or for cold working glass.” The instant machine works on finished concrete to remove material from it. Unlike the machines of 8474, HTSUS, this merchandise does not form concrete.

Likewise, protestant argues that exclusionary note (e) in the E.N. to heading 8464, HTSUS, prohibits classification therein. The exclusionary note provides that the heading excludes crushing, grinding, mixing, moulding, agglomerating, casting, brick-making, etc., machines. As previously set forth herein, the KBH Tumbling System does not perform any of the functions excluded from heading 8464, HTSUS.

Even if the KBH Tumbling System were classifiable in both heading 8474, HTSUS, and 8464, HTSUS, protestant argues that the GRI’s 3(a) and 3(c) require the KBH Tumbling System to be classified in heading 8474, HTSUS. GRI 3(a) provides that “the heading which provides the most specific description shall be preferred to headings providing a more general description.” GRI 3(c) provides that when goods can not be classified by reference to GRI 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order. For the reasons stated above, the KBH Tumbling System is not classifiable in heading 8474, HTSUS, therefore we need not address this portion of protestant’s argument.

The KBH Tumbling System is classifiable in subheading 8464.90.9090, HTSUS, as a machine for working concrete as it improves and advances the status of the concrete wall and paving stones by tumbling them to give them the desired appearance of being distressed.

HOLDING:

The protest and application for further review should be denied in full. The KBH Tumbling System is classified in subheading 8464.90.9090, HTSUS, which provides for machine tools for working stone, ceramics, concrete, asbestos-cement or like mineral materials or for cold working glass: Other: Other, Other. The duty rate at the time of entry for goods classifiable in this subheading was 2 percent ad valorem.

In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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