CLA-2 CO:R:C:M 950836 DWS
District Director
U.S. Customs Service
55 Erieview Plaza
Cleveland, OH 44114
RE: Protest No. 4101-91-100062; Strand Torch Cutting Machine;
Machine Tool; Explanatory Note 84.61(7); Explanatory Note
84.68; Summary Records to Harmonized System; 8468.20.50;
8454.90.00
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 4101-91-100062, dated July 3, 1991, concerning your
action in classifying and assessing duty on strand torch cutting
machines under the Harmonized Tariff Schedule of the United
States (HTSUS).
FACTS:
The subject merchandise consists of strand torch cutting
machines. This machine is used to cut steel slab and steel
strand. According to counsel for the importer, approximately 95
percent of the machines are used on-line in continuous casting
plants. The remaining machines are used in casting plants as
off-line machinery.
Each torch cutting machine consists of one or more cutting
torches connected to a torch carriage. In turn, the torch
carriage is connected to a machine carriage, which covers the
steel slab in a portal-like design and travels on a rail running
parallel to the slab. The machine carriage is connected to a
computer system which interfaces with the casting mill and the
torch cutting machine. The computer is controlled by a central
processing unit (CPU) contained in a control pulpit. A machine
operator in the pulpit inputs the requisite information into the
CPU. The CPU relays the information to the computer, which
controls the carriage drive, torch drive, burners, and other
functions of the cutting machine.
To cut the steel slab, the torch cutting machine utilizes a
skid attached to a torch carriage beam. The skid is lowered onto
the steel slab being cut, thus synchronizing the forward movement
of the slab and the cutting machine. The actual cutting process
involves a cutting burner and a cutting nozzle, which bring
together oxygen and gas. The machine automatically ignites the
oxygen and gas jets, thus producing the heat required to cut the
steel.
ISSUE:
What is the proper classification of the strand torch
cutting machine under the HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
The merchandise was entered under subheading 8468.20.50,
HTSUS, which provides for: "[m]achinery and apparatus for
soldering, brazing or welding, whether or not capable of cutting,
other than those of heading 8515; gas-operated surface tempering
machines and appliances; parts thereof: [o]ther gas-operated
machinery and apparatus: [o]ther." However, the merchandise was
liquidated under subheading 8461.90.00, HTSUS, which provides
for: [m]achine tools for planing, shaping, slotting, broaching,
gear cutting, gear grinding or gear finishing, sawing, cutting-
off and other machine tools working by removing metal, sintered
metal carbides or cermets, not elsewhere specified or included:
[o]ther."
Counsel for the importer argues that the subject merchandise
cannot be classifiable under subheading 8461.90.00, HTSUS.
Counsel has provided several definitions of machine tools and a
copy of a diagram in the Summary Records to the Harmonized
System, listing machine tools intended to be covered under the
machine tool provisions of the HTSUS.
It is counsel's main contention that the subject strand
torch cutting machine cannot be classifiable as a machine tool,
because it is not listed in the Summary Records diagram for
conventional machine tools, and because it does not come within
the conventional understanding of a machine tool. Counsel cites
several dictionary and trade publication definitions of metal
cutting machine tools which contemplate a cutting tool touching
the surface of a workpiece to remove metal in the form of chips.
We do not agree with counsel's arguments. It is our
position that the machine tool diagram in the Summary Records to
the Harmonized System is not an exhaustive list of all machine
tools to be classifiable as machine tools under heading 8461,
HTSUS. Nowhere is it said that a torch cutting machine, using
oxygen and gas as its tool, is excluded from classification as a
machine tool. We find that the machine tools provided for in the
diagram are merely instructional examples as to what may be
classifiable as a machine tool.
It is also our position that the provisions for machine
tools in chapter 84, HTSUS, in general, and in heading 8461,
HTSUS, in particular, are not limited to machine tools which
utilize a solid cutting tool. We note that heading 8456, HTSUS,
provides for a number of machine tools, including laser,
ultrasonic, and electro-discharge, none of which use a tool which
comes in contact with the workpiece.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes, although not dispositive, are
to be used to determine the proper interpretation of the HTSUS.
54 Fed. Reg. 35127, 35128 (August 23, 1989). In part,
Explanatory Note 84.61(7) (p.1277-1278) states:
(7) Cutting-off machines. These machine-tools differ from
sawing machines by virtue of the tools they use. The
latter can be either cutting tools analogous to lathe
tools, or abrasive or metal discs. . . .
. . . . cutting-off machines, with metal discs, also
known as friction sawing machines, are characterised by
the fact that they operate by means of a mild steel disc
with a toothless periphery. This disc, which may be
fluted, is rotated in such a way as to give it a
peripheral speed such that if the periphery of the disc
is gradually brought in close proximity to a piece of
metal, the latter immediately melts without having
close contact with the disc. This phenomenon is the
result of friction combined with the oxidising action of
the air trapped between the disc and the metal to be
cut.
The above description is an example of a machine tool which
operates by cutting with friction heat, without the metal disc
touching the surface base. Inasmuch as the listing in
Explanatory Note 84.61, HTSUS, is not exhaustive, it is not
unreasonable to conclude that this heading also includes gas
cutting machines.
For these reasons, it is our position that the subject
strand torch cutting machine is included within subheading
8461.90.00, HTSUS.
Counsel claims that the merchandise is classifiable under
subheading 8468.20.50, HTSUS. We disagree. Heading 8468, HTSUS,
provides for machinery or apparatus for soldering, brazing, or
welding, and gas-operated surface tempering machines and
appliances. The subject merchandise does none of these listed
operations. GRI 1 is not satisfied because the strand torch
cutting machine does not satisfy the terms of the heading.
Furthermore, in part, Explanatory Note 84.68 (p.1290),
HTSUS, states that:
[t]he heading covers:
(A) Soldering, brazing or welding machinery and apparatus,
whether or not capable of cutting, gas-operated or using
processes other than those referred to in the text of
heading 85.15. Machines designed exclusively for
cutting are classified in their own appropriate
headings.
(B) Gas-operated surface tempering machines and appliances.
It is clear that the strand torch cutting machine is not
classifiable under heading 8468, HTSUS, because it is a machine
designed exclusively for cutting and as directed by the
Explanatory Notes is classifiable in its own appropriate heading.
Also, it is not a gas-operated surface tempering machine or
appliance.
As an alternative, counsel claims that the merchandise is
classifiable under subheading 8454.90.00, HTSUS, as parts
converters, ladles, ingot molds and casting machines, of a kind
used in metallurgy or in metal foundries.
Section XVI, note 2(a), HTSUS, states that:
[p]arts which are goods included in any of the headings of
chapters 84 and 85 (other than headings 8485 and 8548) are
in all cases to be classified in their respective headings.
Because the strand torch cutting machine is included in
heading 8461, HTSUS, the merchandise cannot be classifiable as a
part of a casting machine by reason of section XVI, note 2(a),
HTSUS.
Counsel claims that heading 8461, HTSUS, is a "basket"
provision and is not specific in providing for the subject
merchandise. Additional U.S. Rule of Interpretation 1(c) is
cited. It states that:
a provision for parts of an article covers products solely
or principally used as a part of such articles but a
provision for "parts" or "parts and accessories" shall not
prevail over a specific provision for such part or
accessory.
We disagree with counsel's argument. Heading 8461, HTSUS,
provides for "[m]achine tools for . . . . cutting-off and other
machine tools working by removing metal, . . . . not specified
elsewhere in this chapter." We find that heading 8461, HTSUS, is
a specific provision for the purposes of Rule 1(c). Furthermore,
counsel's argument is irrelevant, because even if the cutting
machine is a part, a conclusion of which we do not concede, we
have found that heading 8461, HTSUS, includes gas cutting
machines. Therefore, by reason of section XVI, note 2(a), HTSUS,
heading 8461, HTSUS, will prevail over the parts provision.
Counsel cites HQ 089935, dated November 6, 1991, which dealt
with the issue of whether a thin strip casting machine, imported
in one ship disassembled, is a composite machine for
classification purposes. Counsel states that "[i]n HQ 089935, .
. . . Customs acknowledges that a cutting machine is part of a
continuous casting machine and is properly classified under
Heading 8454."
We disagree with counsel's interpretation of the holding in
HQ 089935. Nowhere in the ruling is there a discussion as to
whether a cutting machine is part of a casting machine. To the
contrary, the only issue discussed in the ruling is whether the
goods included in the one shipment constituted a composite
casting machine.
HOLDING:
The strand torch cutting machine is classifiable under
subheading 8461.90.00, HTSUS, which provides for: "[m]achine
tools for planing, shaping, slotting, broaching, gear cutting,
gear grinding or gear finishing, sawing, cutting-off and other
machine tools working by removing metal, sintered metal carbides
or cermets, not elsewhere specified or included: [o]ther."
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