CLA-2 CO:R:C:G 087849 JMH
Robert E. Burke, Esq.
Barnes, Richardson & Colburn
200 East Randolph Drive
Chicago, Illinois 60601
RE: Belts or belting used with harvesters; belts and belting
made of textile material and coated with vulcanized rubber;
conveyer or transmission belts or belting; parts of
machines; Section XVI, Note 1(a); harvesters; parts of
agricultural machinery classified in heading 8433; Section
XXII, Chapter 98, Subchapter XVII, U.S. Note 2; actual use;
Customs Regulation 10.133
Dear Mr. Burke:
This is in response to your August 23, 1990 request for a
classification ruling concerning belting to be used with potato
and beet harvesters.
FACTS:
The articles in question are belting used with equipment
designed for the harvesting of potatoes and beets. You state
that the belting is made from rubber strips. The strips are
manufactured in Holland by coating man-made fibers with a heavy
layer of rubber. The strips are molded to exact specifications.
Prior to importation, the strips are punched with predetermined
holes and then rivets and rivet plates are attached. The belting
is imported both cut to specific lengths and in 100m rolls. The
strips and rolls will also be imported with only the pre-
punched holes. After they are imported, if the belting is
imported in rolls then the rolls are cut into strips. Then,
whether cut into strips before or after importation, two or three
of the strips will be joined together by the attachment of
harvesting rods. The harvesting rods are then secured by capping
the rivets.
Once completed, the joined strips are referred to as
harvester traction belts. The strips are sold exclusively for
use on harvesting equipment. When attached to the harvesting
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machines, the harvester traction belts are used to aid in
picking up the vegetables being harvested. The belts also convey
the vegetables through the machinery to the storage truck or bin.
ISSUE:
Issue 1: Whether the belting to be used with harvesting
equipment is a part of harvesting machinery in heading
8433, Harmonized Tariff Schedule of the United States
Annotated ("HTSUSA") or is belts or belting in heading
4010, HTSUSA.
Issue 2: Whether the belting to be used with harvesting
equipment is eligible for duty free treatment under
heading 9817.00.60, HTSUSA.
LAW AND ANALYSIS:
Issue 1: Whether the belting to be used with harvesting
equipment is a part of harvesting machinery in heading
8433, Harmonized Tariff Schedule of the United States
Annotated ("HTSUSA") or is belts or belting in heading
4010, HTSUSA.
The classification of merchandise under the HTSUSA is
governed by the General Rules of Interpretation ("GRIs"). GRI 1,
HTSUSA, states in part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes..." The headings in
contention are headings 4010 and 8433, HTSUSA. These headings
describe the following:
4010 Conveyor or transmission belts or belting, of
vulcanized rubber...
* * * * * * * * * * * * *
8433 Harvesting and threshing machinery, including
straw or fodder balers...parts thereof...
The relevant section and chapter notes include Chapter 40,
Note 8, HTSUSA, and Section XVI, Note 1(a), HTSUSA. Chapter 40,
Note 8 states the following:
Heading 4010 includes conveyor or transmission belts or
belting of textile fabric impregnated, coated, covered
or laminated with rubber or made from textile yarn or
cord impregnated, coated, covered or sheathed with
rubber...
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Section XVI, Note 1(a) excludes conveyor belts or belting of
vulcanized rubber and classified in heading 4010 from
classification within Section XVI.
The belting in question is textile fabric coated with
rubber used to convey harvested vegetables from the field through
the harvesting machinery. Heading 4010 covers both "belts" and
"belting". The term "belts" usually refers to a finished or
complete item, while the term "belting" generally refers to an
article which requires further manufacture. The subject
merchandise is entered, whether on rolls or cut to strips, in an
unfinished state. However, a determination of whether the rolls
and strips are "belts" or "belting" need not be made since
heading 4010 provides for both "belts" and "belting". No
distinction is made between the two within heading 4010 or
Chapter 40, Note 8 of the tariff. The belts or belting in
question is described by, and thus is classifiable under, heading
4010.
Since the belts or belting are classifiable under heading
4010, the belting is excluded from classification within Section
XVI by Section XVI, Note 1(a). Heading 8433 is within Chapter 84
and Section XVI. Thus, the belts or belting are excluded from
classification within heading 8433.
The subject belts or belting to be used with harvesting
machines are made of textile material coated with vulcanized
rubber and used as conveyer belts with harvesting machinery.
Heading 4010 is an eo nomine provision for conveyer belts and
belting. The appropriate classification for the belts or belting
is subheading 4010.99.15, HTSUSA, as "Conveyor or transmission
belts or belting, of vulcanized rubber...Other...Other...With
textile components in which man-made fibers predominate by weight
over any other single textile fiber..."
Your contention that the belts or belting are properly
classified as a part of harvesting machinery under heading 8433
is based upon U.S. v. Flex Trak Equipment, LTD., 458 F.2d 148
(1972). In that case, decided under the prior Tariff Schedules
of the United States ("TSUS"), belting which was cut to length
and then punched with holes at predetermined locations so that
the belting would fit specific vehicles was imported. Customs
classified the belting under item 358.10, TSUS, as belting for
machinery. The court determined that the belting was "more than"
belting and was properly classified under item 692.25, TSUS, as
parts of special motor vehicles. The two TSUS provisions state
the following:
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358.10 Belting and belts, for machinery...Of
vegetable fibers, or of such fibers and
rubber or plastics...In part of rubber or
plastics...
* * * * * * * * * * * * *
692.25 Motor vehicles (except motorcycles) for the
transport of persons or articles...Motor
vehicles specially constructed and equipped
to perform special services or functions,
such as, but not limited to, fire engines,
mobile cranes, wreckers, concrete mixers, and
mobile clinics...Chassis bodies (including
cabs), and parts of the foregoing motor
vehicles...Other...Other...
However, two key factors prevent the classification
decision of U.S. v. Flex Trak Equipment, LTD., 458 F.2d 148,
from determining the outcome of the present situation. These two
factors are (1) the nomenclature of the new tariff, the HTSUSA,
and (2) the interpretation of the HTSUSA as intended by Congress.
When the nomenclature of a new tariff has changed along with the
legal interpretation of the text, prior case law is not to be
deemed dispositive. See Legislative History of the Trade and
Competitiveness Act of 1988, House Conference Report No. 100-576,
Public Law 100-418, pp. 1582-1583.
The first factor, the nomenclature of the HTSUSA, prevents
the classification of U.S. v. Flex Trak Equipment, LTD. from
controlling in this instance because the language of the HTSUSA
provisions in question is substantially different from the
language of the subject TSUS provisions. The court in Flex Trak
Equipment, LTD. classified the belting which was cut to length
with predetermined punched holes in item 692.25 as parts of motor
vehicles, because a TSUS provision did not exist which more
specifically described the use of the belting. However, the
HTSUSA now incorporates heading 4010 which specifically
describes the belting in question. The subject belts or belting
are conveyor belts or belting. Thus, heading 4010 is an eo
nomine provision. These differences in nomenclature between the
tariffs indicate that the classification of the subject belting
under the HTSUSA should not be bound by prior case law decided
under the TSUS.
The second factor that prevents Flex Trak Equipment, LTD.
from being decisive regarding the classification of the belts or
belting is that a different legal interpretation of the HTSUSA
provisions is required. The GRIs and the section and chapter
notes of the HTSUSA establish that the belting in question is to
be excluded from classification as a machine part under the
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HTSUSA. These legal notes, along with the GRIs, are the
foundation of the HTSUSA system of classification which was
adopted by Congress. To disregard the basis of the
classification system is to disregard the intent of Congress.
Since the tariff provisions between the TSUS and the HTSUSA
have changed and the interpretations of the tariffs are
dissimilar, Flex Trak Equipment, LTD. is not dispositive
of the classification in this instance. The GRIs, headings, and
the section and chapter notes of the HTSUSA are determinative of
the correct classification for the belting in question.
Issue 2: Whether the belting to be used with harvesting
equipment is eligible for duty free treatment under
heading 9817.00.60, HTSUSA.
The HTSUSA consists of 99 chapters. The first 97 chapters
form the international portion of the tariff that is utilized by
all countries which have adopted the tariff. Chapters 98 and 99
of the HTSUSA are United States chapters which have been added to
the international portion by Congress. Any item that is imported
into the United States will receive a classification from within
the first 97 chapters. Chapters 98 and 99 provide an additional
classification that grants special treatment to qualifying
articles.
The classification of merchandise under the HTSUSA, as
stated above, is governed by the GRIs. GRI 1 states in part that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes..." The
subject conveyor belts or belting meet the terms of heading 4010
and are classified in subheading 4010.99.15. This is the
classification from the international chapters of the tariff.
However, if an article is described by a provision of
chapter 98 and all applicable requirements are met, then the
chapter 98 provision and its duty rate prevail over the
classification and tariff rate from the international portion of
the tariff. See Chapter 98, U.S. Note 1. The chapter 98
provision would then be the ultimate classification for purposes
of importation into the United States.
The Chapter 98 provision at issue in this instance is
heading 9817.00.60. Heading 9817.00.60 grants duty free
treatment to certain parts of machines used in agricultural
pursuits. Before an article can be classified in subheading
9817.00.60 a three part test must be met: (1) the articles must
not be among the long list of exclusions to heading 9817.00.60,
HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S.
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Note 2, HTSUSA; (2) the terms of heading 9817.00.60 must be met
in accordance with GRI 1; and (3) the merchandise must meet the
actual use conditions required under Customs Regulation 10.133,
10 C.F.R. 133.
The conveyor belts or belting are classified under heading
4010. Heading 4010 is not among the list of exclusions found in
Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2.
Therefore, the first part of the three part test is met.
The second requirement is that the terms of heading
9817.00.60 must be met, in accordance with GRI 1. Heading
9817.00.60 describes the following:
Parts to be used in articles provided for in headings
8432, 8433, 8434 and 8436, whether or not such parts
are principally used as parts of such articles and
whether or not covered by a specific provision within
the meaning of additional U.S. rule of interpretation
1(c)...
The first term of the heading to be met is "[p]arts". The
belts or belting in question must be "parts" of the articles
within the listed headings. A "part" is an article which is an
integral, constituent, component of a larger entity, and without
the article being joined to the larger entity the larger entity
could not function. United States v. Willoughby Camera Stores,
Inc., 21 CCPA 332, T.D. 46851 (1933), cert. denied, 292 U.S. 640,
54 S.Ct. 773, 78 L. Ed. 1492 (1933); United States v. The J.D.
Richardson Company, 36 CCPA 15, C.A.D. 390 (1948), cert. denied,
336 U.S. 936, 69 S.Ct. 746, 93 L. Ed. 1095 (1949); United states
v. John A. Steer Co., 46 CCPA 132, C.A.D. 715 (1959). An
unfinished or incomplete part which as entered has the essential
character of the finished or complete part is to be classified
under the HTSUSA as if it were the finished or complete part.
GRI 2(a), HTSUSA.
However, the principle has long been espoused that goods
which remain material when entered are not classifiable as a
particular article unfinished. The Harding Co. et al. v. United
States, 23 Cust. Ct. 250 (1936) (rolls of brake lining held to be
material because the identity of the brake lining was not fixed
with certainty); American Import Co. v. United States, 26 CCPA
72, 75, T.D. 49612 (1938) (lengths of silk fishing leader gut
classified as manufactures of silk rather than unfinished
leaders); F.H. Paul & Stein Bros., Inc. v. United States, 44
Cust. Ct. 130, C.D. 2166 (1960) (rolls of aluminum foil without
lines of demarcations held to be material not articles featuring
an electrical element or device); Sandvik Steel, Inc. v. United
States, 66 Cust. Ct. 12, C.D. 4161, 321 F. Supp. 1031 (1971)
(shoe die knife steel in coils and cutting rules in lengths,
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without demarcations for cutting or bending, held to be material
rather than unfinished knives or cutting blades.); Naftone, Inc.
v. United States, 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of
plastic film without demarcations for cutting despite having only
one use held to be insulating material). These decisions turn on
the clarity of the identity and the dedication of use of the
imported articles.
Since goods which are material when entered are classified
as material, these goods are not "parts." "Parts" are integral,
constituent components of a larger entity and "material" lacks
the essential character of an integral, constituent article.
Where the identity of an imported article is not fixed with
certainty it will be regarded as material and not as an
unfinished article or a part. Lee Enterprises, Inc. v. United
States, 84 Cust. Ct. 208 (C.D. 4860) (photopolymer plates
dedicated to a specific use and advanced in processing held to be
unfinished printing plates and not material.), citing Bendix
Mouldings, Inc. v. United States, 73 Cust. Ct. 204, C.D. 4576,
388 F.Supp. 1193 (1974), Sandvik Steel, Inc. v. United States, 66
Cust. Ct. 12, C.D. 4161, 321 F. Supp. 1031.
A case on point is Sandvik Steel, Inc. v. United States, 75
Cust. Ct. 78, C.D. 4610 (1975). In this case, coils of "band
steel" conveyor belting were imported. The coils were not precut
or marked to indicate the ultimate length of the individual
conveyor belts. The court held the coils to be material. The
decision was based on the facts that the coils were not dedicated
to the making of any particular conveyor belt. A coil does not
fix with certainty the identity of the belts. However, the court
stated that conveyor belts cut to length and ready for final
jointing were parts and not material. See also Flex Trak
Equipment, LTD. (belting cut in strips and punched determined to
be parts.)
The subject articles are belting on 100m rolls and belting
cut into strips. Both the rolled and cut belting are imported in
unfinished condition. Both the rolls and the cut strips are
punched with predetermined holes, and in the exact width
required. The cut belting may also be riveted prior to entry.
The belting in strips has the essential character of the finished
belt. The cut belting not only has fewer operations left to be
performed on it, but it is also the exact size of the finished
product. The identity of the imported strips is fixed with
certainty. The strips are not capable of other uses. They are
clearly belts. As belts they are constituent, integral
components of a larger entity. Thus, the belting in strips are
unfinished belts and are parts within the terms of heading
9817.00.60.
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However, the belting in rolls does not have the essential
character of a finished belt. No demarcations are present on
the rolls to indicate where the rolls will be cut. As a roll,
although it is intended for use with the harvester machinery,
identity of an imported article is not fixed with certainty. The
rolls could be capable of other uses. Thus, the rolls of belting
are only material. As material, the belting is not a part, and
therefore, does not meet the terms of heading 9817.00.60.
The subject belts cut in strips are "parts" within heading
9817.00.60. The belts cut in strips are to be used with
harvesting machinery. Harvesters are classified under heading
8433, one of the four listed headings in heading 9817.00.60. You
have stated that the belts are designed for principal, if not
sole, use with the harvesters. However, this heading does not
require any magnitude of use with the harvesters. Finally, that
the belts are classified in a specific provision instead of a
"parts" provision, in accord with additional U.S. rule of
interpretation 1(c), does not prevent their meeting the terms of
the heading. The harvester traction belts cut in strips are
parts for use with articles of heading 8433, thus the terms of
the heading and the second requirement are met.
The third requirement is that the importer must comply with
the actual use conditions required under Customs Regulation
10.133. This regulation includes three conditions: (1) the use
is intended at the time of importation, (2) the article is so
used, and (3) proof of use is furnished within three years after
the date the article is entered or withdrawn from warehouse for
consumption.
The unfinished belts in strips are not excluded from
classification within heading 9817.00.60 by Section XXII, Chapter
98, Subchapter XVII, U.S. Note 2. The unfinished belts cut in
strips are "parts" to be used with harvesters which are
classified under heading 8433, one of the listed headings of
heading 9817.00.60. Therefore, the terms of heading 9817.00.60
are met. Providing the actual use certification requirement of
Customs Regulation 10.138 is met, the conveyor belts and belting
to be used with harvesters are eligible for duty free entry under
heading 9817.00.60.
HOLDING:
The belts or belting for use with harvesters which are
manufactured in Holland are specifically described in heading
4010. Belts or belting made of vulcanized rubber, although to be
used as parts of a machine classified within Section XVI, is
excluded from classification with that machine in accordance with
Section XVI, Note (1)(a). The appropriate classification for the
belts or belting is subheading 4010.99.15, HTSUSA, as "Conveyor
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or transmission belts or belting, of vulcanized rubber...Other...
Other...With textile components in which man-made fibers
predominate by weight over any other single textile fiber..."
The conveyor belts or belting to be used with harvesters
must meet a three part test to be eligible for duty free
treatment under heading 9817.00.60: (1) the articles must not be
among the long list of exclusions to heading 9817.00.60, HTSUSA,
under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2,
HTSUSA; (2) the terms of heading 9817.00.60 must be met in
accordance with GRI 1; and (3) the merchandise must meet the
actual use conditions required under Customs Regulation 10.133,
10 C.F.R. 133.
The unfinished conveyor belts or belting are classified
under heading 4010 are not excluded from heading 9817.00.60 by
Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. The
unfinished belting imported in rolls does not have a fixed
identity or dedication for use. The rolls of belting are
material. As material the rolls are not "parts", and thus, do
not meet the terms of heading 9817.00.60. However, the belting
cut in strips has the essential character of finished belts.
These unfinished belts are parts for use with articles that are
classified in heading 8433, the harvesters. Therefore, the belts
cut in strips meet the terms of heading 9817.00.60. Providing
that the conveyor belts imported in strips and for use with
harvesters meet the conditions for actual use certification under
Customs Regulation 10.133, the belts or belting are entitled to
duty free treatment upon entry under heading 9817.00.60.
Sincerely,
John Durant, Director
Commercial Rulings Division