HQ 955395
FEBRUARY 14 1994
CLA-2:CO:R:C:M 955395 JAS
Mr. Robert Slomovitz
Chief, Machinery Branch, NIS Division
United States Customs Service
6 World Trade Center, Rm. 450
New York, NY 10048
RE: Scrap Chopper; Rotary Chopping Machine for Cutting Scrap
into Uniform Lengths; Fabricated Steel Housing Enclosing
Rotating Cutter Heads With Straight Cutting Knives; Machine
Tool, Subheading 8461.50.00, Sawing or Cutting-Off Machine;
Machine Not Specified or Included Elsewhere, Heading 8479
Dear Mr. Slomovitz:
This is in responce to your memorandum of November 16, 1993
(CLA-2-84:S:N:N1:104), concerning the classification of a scrap
chopping machine from Japan.
FACTS:
The machine at issue is described as a rotary chopper which
cuts metal scrap into pieces of uniform length. It consists of
two housings of welded steel construction that open and close by
hydraulic cylinder. Two rotating cutter heads, each containing
four straight cutting knives 15.7 inches wide apiece, will be
mounted in each housing.
The local import specialist proposes to classify the rotary
chopper in subheading 8461.50.00, Harmonized Tariff Schedule of
the United States (HTSUS), as a sawing or cutting-off machine
tool. He notes that the machines of heading 8461 essentially
function to remove metal in one way or another, which the rotary
chopper does. Further, he maintains that there is no legal
requirement that a device improve, advance or fabricate metal in
order to qualify as a machine tool.
Your office maintains that the rotary chopper does not
perform a traditional machine tool function and makes the
following observations: while the term "machine tool" is defined
under the Tariff Schedules of the United States (TSUS), there is - 2 -
no similar definition under the HTSUS, nor are the Explanatory
Notes (ENs) helpful; the ENs list a number of machines in the
machine tool provisions that perform no traditional machining
function, i.e., assembling machines, gluing machines and presses
for compressing metal scrap; the Customs Court has held under the
TSUS that machine tools must "work" metal by fabricating it, or
by improving or advancing it toward its intended use; a number of
TSUS rulings classify similar machines under item 678.50, as
machines not specially provided for; the machine tool builders
trade association regards a machine as a machine tool only if it
shapes a discrete, usable part.
The provisions under consideration are as follows:
8461.50.00 Machine tools for sawing or cutting-off
...4.4 percent
* * * * *
8479.89.90 Machines and mechanical appliances having
individual functions, not specified or
included elsewhere in [chapter 84]: Other
...3.7 percent
ISSUE:
Whether scrap chopping machines are machine tools for tariff
purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Initially, relevant Explanatory Notes (ENs) state that
heading 8479 is restricted to machinery having individual
functions which is not excluded from chapter 84 by a legal note,
is not covered more specifically by a heading in any other
chapter of the HTSUS, and cannot be classified in any other
particular heading of chapter 84 since no other heading covers it
be reference to its method of functioning or by reference to its
use or to the industry in which it is employed. From this, it is
apparent that if scrap choppers are provided for in any of the
machine tool provisions, they must be classified there.
The term "machine tool" is not defined either in the text of
the HTSUS or in the ENs. The term was, however, defined under - 3 -
the TSUS, in part, to include "...any machine used for shaping or
surface-working matals...whether by cutting away or otherwise
removing the material or by changing its shape or form without
removing any of it..." Schedule 6, Part 4, Subpart F, Headnote
1(a), TSUS. Prior judicial decisions involving nomenclature
under the TSUS are not to be considered dispositive in
interpreting equivalent provisions under the HTSUS. However, on
a case-by-case basis, such decisions should be considered
instructive, particularly where the nomenclature remains
unchanged and no contrary legislative intent is evidenced.
In Pitney-Bowes, Inc. v. United States, C.D. 3116 (1967),
the court examined headnote 1(a) in the context of certain
embossing machines which changed the surface of metal plates by
displacement without removing any metal. The court observed that
from the sources used by the Tariff Commission in drafting
headnote 1(a) it was clear there was no intention to take in all
machines which in any way change the shape or form of metal
regardless of their capability of shaping or surface-working, as
those terms are understood in the field, or of producing other
machines or of their being industrial equipment regarded by those
in the field as machine tools. Lacking a statutory definition of
the term "machine tool", therefore, it is appropriate in
ascertaining the common meaning of the term to consult the
relevant trade or industry. The file contains a letter, dated
November 20, 1991, from The Association for Manufacturing
Technology (formerly the Machine Tool Builders Association)
which, in commenting on an oil filter crusher, notes that machine
tools shape discrete, usable parts. In a case holding that
machines for compressing metal scrap were not machine tools under
the Tariff Act of 1930, the court cited with approval a line of
cases in which certain devices held to be machine tools all
performed "a task of fabrication or manufacture or production" of
an article. Kurt Orban Co., Inc. v. United States, C.D. 2041,
aff'd. C.A.D. 724 (1959). Further, the Classification Guide for
Imports and Exports of Machine Tools, originally prepared by the
NMTBA in 1980, contains verbal summaries of all machine tools
listed in the TSUS. In every summary where the article or thing
being worked on is referenced the term workpiece is used. This
term is routinely defined as "a piece of work in process of
manufacture."
From the cited court cases, it appears that machines that do
not work metal by a process of fabrication, manufacture or
improvement toward an intended end use would not have been
regarded as "machine tools" under the TSUS. This conclusion,
buttressed by the cited trade sources, makes it reasonable to
conclude that such machines are not to be regarded as true
machine tools under the HTSUS. Scrap chopping machines,
therefore, appear to be an example that tariff provisions do not
necessarily include everything that falls within their literal - 4 -
meaning. United States v. Andrew Fisher Cycle Co., Inc., 57 CCPA
102, C.A.D. 986 (1970).
We are mindful that presses for compressing metal scrap into
bales are listed at (10) on p. 1280 of the ENs for heading 84.62,
a provision for machine tools which work metal by changing its
shape or form. However, because these machines are only listed
and there is no narrative description of their method of
operation, we conclude the ENs in this case are at best
inconclusive.
HOLDING:
Scrap chopping machines, as described, are not conclusively
shown to be machine tools for tariff purposes. Under the
authority of GRI 1, they are provided for in heading 8479.
Actual classification is in subheading 8479.89.90, HTSUS.
This decision is limited to the machine in isuue. Other
machines are to be considered independently, on the basis of the
particular facts presented.
Sincerely,
John Durant, Director
Commercial Rulings Division