CLA-2 CO:R:C:M 950218 LTO
District Director
U.S. Customs Service
40 South Gay Street
Baltimore, Maryland 21202
RE: Protest No. 1303-91-100246; Hydraulic Mine Roof Shield
Supports; 8430; 8431; EN 84.30; XTC Products, Inc. v. U.S.; U.S.
v. Citroen; Daisy-Heddon, Div. Victor Comptometer Corp. v. U.S.;
GRI 2(a); Section XVI, Note 4; HQ 084855; HQ 085145; HQ 087077;
C.I.E. 227-67; NY 802700; NY 803104; Item 664.05, TSUS; Item
664.08, TSUS; H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863
(1988)
Dear Sir:
This protest concerns the tariff classification of hydraulic
mine roof shield supports under the Harmonized Tariff Schedule of
the United States (HTSUS).
FACTS:
The articles in question are hydraulically operated mine
roof shield supports [hereinafter "shield supports"]. The shield
supports, along with a shearer and a face conveyor, form a
longwall mining system. In this system, the shield supports are
installed side by side along the face of an underground coal seam
to form a continuous overhead canopy which cantilevers over the
shearer and the face conveyor. The shield supports prevent the
mine roof from collapsing onto these machines as the coal is
removed.
The coal shearer, which is self-propelled and moves
laterally across the coal seam face, shears off coal in 20 to 30
inch wide strips and pushes the chunks of coal onto the face
conveyor. The face conveyor moves that coal away from the face
of the coal seam and onto a belt conveyor, which is not a machine
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of the longwall mining system. The stage loader, which is a part
of the conveyor system, takes the coal from the belt conveyor.
The loader has a "crusher" to break any pieces of coal that are
too large.
While the coal is being removed from the mining area,
hydraulic cylinders located at the base of the shield support
push sections of the face conveyor into the resulting gap in
preparation for the next shearing pass. Hydraulic cylinders in
the shield support which support the caving shield are then
retracted a few inches, the bases sequentially advanced toward
the coal face, and the shield supports re-extended so that they
again support the mine roof.
The shield supports are self-propelled, and they move the
system forward. Approximately 100-160 shield supports are used
in a single longwall mining system. The three machines of a
longwall mining system are interdependent on each other. No two
could function without the third. Thus, while the shield
supports are self-propelled, they cannot operate by themselves.
In HQ 084855, dated September 13, 1989, self-advancing
hydraulic mine roof shield supports were classified under
subheading 8479.89.90, HTSUS, which provides for "[m]achines and
mechanical appliances having individual functions, not specified
or included elsewhere in this chapter . . . [o]ther machines and
mechanical appliances . . . [o]ther . . . [o]ther." The
articles in question were liquidated under this same subheading.
The protestant contends that the shield supports are classifiable
under Heading 8430, HTSUS, which describes other excavating or
extracting machinery. In the alternative, the protestant
contends that the shield supports are covered by Heading 8431,
HTSUS, which describes parts suitable for use solely or
principally with the extracting or excavating machinery of
Heading 8430, HTSUS.
ISSUE:
Whether the shield supports are classifiable as other
excavating machinery under Heading 8430, HTSUS, as parts thereof
under Heading 8431, HTSUS, or as machines not specified or
included elsewhere under Heading 8479, HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
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any relative section or chapter notes . . . ."
The headings at issue are as follows:
8430 Other moving, grading, leveling,
scraping, excavating, tamping,
compacting, extracting or boring
machinery, for earth, minerals or
ores . . .
* * * * * * * * * * * * *
8431 Parts suitable for use solely or
principally with the machinery of
headings 8425 to 8430
* * * * * * * * * * * * *
8479 Machines and mechanical appliances
having individual functions, not
specified or included elsewhere in
this chapter
A complete longwall mining system consists of the following
three pieces of machinery: (1) a shearing machine; (2) a face
conveyor; and (3) shield supports. After the shearing machinery
slices off the coal, the face conveyor moves that coal away from
the face of the coal seam. The shearing machinery, or plow, is
self-propelled and it moves laterally across the face of the
coal. The shield supports are also self-propelled, and they move
the system longitudinally forward.
Section XVI, Note 4 states that "[w]here a machine
(including a combination of machines) consists of individual
components . . . intended to contribute together to a clearly
defined function covered by one of the headings in chapter 84 or
chapter 85, then the whole falls to be classified in the heading
appropriate to that function." The shearing machinery, face
conveyor, and the shield supports, which form a longwall mining
system, contribute together to perform a function defined under
Heading 8430, HTSUS. The three machines are interdependent on
each other. No two could function without the third. As such,
if this entire system were imported together, it would be
classifiable as extracting machinery under this heading, not
because all three machines extract, but because the three
constitute a "functional unit."
This conclusion, however, does not mean that one of the
three machines must necessarily be classified under Heading 8430,
HTSUS, or as a part of the system. Recently, the U.S. Court of
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International Trade reiterated that "[i]t is well established
that an imported article is to be classified according to its
condition as imported . . . ." XTC Products, Inc. v. United
States, 771 F.Supp. 401, 405 (1991). See also, United States v.
Citroen, 223 U.S. 407 (1911). Your office determined that, as
imported, the shield supports are not classifiable under Heading
8430, HTSUS, as "[o]ther moving, grading, leveling, scraping,
excavating, tamping, compacting, extracting or boring machinery
. . . ."
The protestant contends that the shield supports are
classifiable under Heading 8430, HTSUS, according to GRI 2(a).
GRI 2(a) states that:
Any reference in a heading to an article shall be
taken to include a reference to that article
incomplete or unfinished, provided that, as entered,
the incomplete or unfinished article has the
essential character of the complete or finished
article.
In Daisy-Heddon, Div. Victor Comptometer Corp. v. United States,
600 F.2d 799 (1979), the U.S. Court of Customs and Patent Appeals
set the guidelines to be followed in determining the
classification of unfinished articles. The protestant asserts
that the shield supports, based on the Daisy-Heddon guidelines,
are classifiable as unfinished coal cutting or excavating
machinery. However, as imported, the shield supports are not an
unfinished article--they are complete machines in and of
themselves. It is inappropriate to apply Daisy-Heddon to a
complete machine that will be incorporated into a system in the
U.S. after importation. Similarly, it is inappropriate to
perform an "essential character" analysis in this instance. By
way of example, if the face conveyor--a machine in a longwall
mining system--was imported into the U.S. by itself, it would not
be classified as an unfinished article, even if the Daisy-Heddon
or "essential character" criteria were satisfied, because the
conveyor is specifically provided for under Heading 8428, HTSUS
[other loading or unloading machinery]. This reasoning should
not change simply because the article in question is not
specially provided or included elsewhere.
The protestant also contends that since the shield supports
are the propelling base for the complete system, they should be
classified pursuant to Explanatory Note 84.30, as incomplete
self-propelled coal cutting or extracting machinery under Heading
8430, HTSUS. EN 84.30, pg. 1203, states that Heading 8430,
HTSUS, "covers self-propelled machines in which the propelling
base, the operating controls, the working tools and their
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actuating equipment are specially designed for fitting together
to form an integral mechanical unit." For example, EN 84.30, pg.
1203, states that a propelling base resembling a tractor, but
specially designed, constructed or reinforced to form an integral
part of a machine performing one or more of the functions listed
in Heading 8430, HTSUS, would be classified under this heading.
EN 84.30, pg. 1203-1204, further states that "[p]resented
separately, such propelling bases also fall in this heading, as
incomplete machines having the essential features of complete
machines of the same kind."
It is our opinion that the shield supports are not the type
of propelling base contemplated by the Explanatory Notes. While
the EN's listing of a tractor-type base is only an example, it is
clear that the propelling base must in some way resemble a
tractor. For example, EN 84.30, pg. 1204, provides that "[f]or
more detailed criteria for distinguishing between the tractors of
heading 87.01 and the propelling bases of this Chapter see
Explanatory Note 87.01." Heading 8701, HTSUS, provides for
"[t]ractors (other than those of heading 8709)." Thus, a
tractor-type propelling base was clearly the type contemplated by
the notes, and therefore, the note is inapplicable to the present
case.
Alternatively, the protestant argues that the shield
supports are covered by Heading 8431, HTSUS, which describes
parts suitable for use solely or principally with the extracting
or excavating machinery of Heading 8430, HTSUS. As stated above,
the three basic machines in a longwall mining system are
interdependent on each other. No two could function without the
third.
The protestant suggests that the shield supports, which are
used solely with the other machines of a longwall mining system
(which, according to Note 4 to Section XVI, is classifiable under
Heading 8430, HTSUS), should be classified as a part of such
system under Heading 8431, HTSUS. However, in discussing the
applicability of Note 4 to Section XVI, this office has concluded
that "there are no Legal Notes or ENs that provide for
'unfinished functional units.'" HQ 087077, dated March 27, 1991.
Similarly, there are no Legal Notes or ENs which provide for
"parts of functional units." The fact that several machines, if
imported together, would be classified under a single heading as
a "functional unit" does not mean that the same should hold true
if they are imported separately. When imported separately, the
machines must be individually classified.
Moreover, it would be inappropriate, in this instance, to
classify the shield supports, which are complete machines by
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themselves, as "parts" of a system composed of more than one
machine. The shield supports are not a part of a particular
machine for extracting coal, but rather a part of a system, or
group, of machines which function together to perform longwall
mining operations. The shearing machinery, the face conveyor and
the shield supports are separate machines in and of themselves,
designed to work in conjunction with one another for a common
purpose, but each having an individual identity. Therefore, the
shield supports are not parts of an article (or a machine) of
Heading 8430, HTSUS, and thus cannot be classified under Heading
8431, HTSUS.
Finally, the protestant argues that there is a uniform and
established practice of classifying shield supports as mining
equipment under the TSUS, and that this practice carries over to
the HTSUS. In C.I.E. 227-67, dated February 28, 1967, it was
held that "[t]here is a uniform and established practice of
classifying equipment similar to the mechanized roof supports and
the hydraulic roof supports, Mk III, under the provision for
extracting machinery, whether stationary or mobile, for minerals
or ores, in item 664.05, Tariff Schedules of the United States
(TSUS) . . . ." That postion was later affirmed in NY 802700,
dated April 19, 1982, and in NY 803104, dated June 16, 1982
[then, under item 664.08]. Item 664.08, TSUS, provided for
"mechanical shovels, coal-cutters, excavators, scrapers,
bulldozers and other excavating, levelling, boring and extracting
machinery . . . for earth, minerals or ores." The protestant
contends that Customs is required to continue this "practice"
under the Harmonized System.
The text of Heading 8430, HTSUS, is substantially similar to
this prior TSUS provision. However, the Harmonized Commodity
Description and Coding System Explanatory Notes were drafted
subsequent to the preparation of the Harmonized System
Nomenclature itself. The Conference Report on H.R. 3, the
Omnibus Trade and Competitiveness Act of 1988, part 3, explained
that the Explanatory Notes, while not legally binding, are
generally indicative of proper interpretation of the various
provisions of the Convention and that they should be consulted
for guidance. H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863
(1988). As shown above, based on the Explanatory Notes and the
text of the heading, the articles in question cannot be
classified under Heading 8430, HTSUS.
Customs position with regard to the classification of self-
advancing hydraulic mine roof shield supports under the HTSUS was
clearly expressed in HQ 084855, dated September 13, 1989. In
that ruling, this office classified the shield supports under
subheading 8479.89.90, HTSUS, which describes other machines and
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mechanical appliances not specified or included elsewhere.
Therefore, according to HQ 084855, the shield supports are
classifiable under subheading 8479.89.90, HTSUS. The rulings
under the TSUS concerning the classification of shield supports
are not valid precedent under the HTSUS.
HOLDING:
The shield supports are classifiable under subheading
8479.89.90, HTSUS, which provides for "[m]achines and mechanical
appliances having individual functions, not specified or included
elsewhere in this chapter . . . [o]ther machines and mechanical
appliances . . . [o]ther." The corresponding rate of duty for
articles of this subheading is 3.7% ad valorem.
The protest should be denied. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division