CLA-2 CO:R:C:M 951859 LTO
District Director
U.S. Customs Service
110 S. Fourth Street
Room 137
Minneapolis, Minnesota 55401
RE: Protest No. 3501-92-100122; Extrusion Pullers; 8428; 8431;
Note 2(a) to Section XVI; Note 3 to Section XVI; Modern
Plastics Encyclopedia ("Pipe, tubing and profile takeoff");
EN 84.28; EN 84.77; NY 845797
Dear Sir:
This is in reference to Protest No. 3501-92-100122, dated
May 6, 1992, which concerns the classification of extrusion
pullers under the Harmonized Tariff Schedule of the United States
(HTSUS). Our response follows.
FACTS:
The articles which are the subject of this protest are
extrusion pullers. According to the protestant, extrusion
pullers are machines used for moving extruded plastic profiles.
These pullers are essential to maintaining the shape of the
extruded profile as it is being cooled. Without them, the
profile would deform.
The articles in question were entered under subheading
8431.39.00, HTSUS, which describes other parts of elevators and
conveyors. They were liquidated under subheading 8477.20.00,
HTSUS, which describes extruders. The protestant now claims that
the extrusion pullers are covered by subheading 8428.20.00,
HTSUS, which describes pneumatic conveyors.
ISSUE:
Whether the extrusion pullers are classifiable as pneumatic
- 2 -
conveyors or as machinery for working rubber or plastics or for
the manufacture of products from these materials.
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
any relative section or chapter notes . . . ."
The headings at issue are as follows:
8428 Other lifting, handling, loading or
unloading machinery (for example,
elevators, escalators, conveyors,
teleferics)
* * * * * * * * * * * * *
8431 Parts suitable for use solely or
principally with the machinery of
headings 8425 to 8430
* * * * * * * * * * * * *
8477 Machinery for working rubber or plastics
or for the manufacture of products from
these materials, not specified or
included elsewhere in this chapter . . .
The protestant contends that the articles in question are
pneumatic conveyors covered by subheading 8428.20.00, HTSUS. If
the extrusion pullers are classifiable under Heading 8428, HTSUS,
they cannot be classified under Heading 8477, HTSUS. Further, if
they are classifiable in either Heading 8428, HTSUS or Heading
8477, HTSUS, then they cannot be classified under Heading 8431,
HTSUS. See Note 2(a) to Section XVI.
The Harmonized Commodity Description and Coding System
Explanatory Note (EN) 84.28, pg. 1197, states that Heading 8428,
HTSUS, "covers a wide range of machinery for the mechanical
handling of materials, goods, etc. (lifting, conveying, loading,
unloading, etc.)." Conveyors are used for moving goods,
generally in a horizontal direction. EN 84.28, pg. 1198.
Pneumatic conveyors are machines "in which small containers (for
documents, small machined parts, etc.) or bulk materials (grain,
straw, hay, sawdust, pulverised coal, etc.) are forced along a
tube by an air current . . . ." EN 84.28, pg. 1199. The
articles in question are not pneumatic conveyors, nor are they
conveyors of any kind, and, therefore, subheading 8428.20.00,
HTSUS, cannot apply. - 3 -
Extrusion pullers perform two functions: (1) they handle the
product as it moves through the downstream equipment; and (2)
they maintain the product's speed so that the extruded profile
does not deform. Note 3 to Section XVI states that "machines
adapted for the purpose of performing two or more complementary
or alternative functions are to be classified as . . . being that
machine which performs the principal function."
The "handling" function performed by the extrusion pullers
is described by Heading 8428, HTSUS, which covers machines that
mechanically handle extruded plastic profiles. The "speed
maintenance" function is described by Heading 8477, HTSUS, which
covers machines for working rubber or plastics.
EN 84.77, pg. 1312, states that Heading 8477, HTSUS, "covers
machinery for working rubber or plastics or for the manufacture
of products from these materials, not specified or included
elsewhere in this Chapter." We agree with the protestant that
the articles in question are not "extruders," which are the
machines used to form the plastic profile by heating plastic
granules and forcing them through a die. However, the pullers
are machines for working plastics and are, therefore, covered by
Heading 8477, HTSUS.
It is our opinion that the principal function of the
extrusion pullers, also known as 'takeoffs,' "is to maintain the
speed of the extrudate as it moves through the downstream
equipment." Stinson, "Pipe, tubing and profile takeoff," Modern
Plastics Encyclopedia, pg. 371 (1991). Extrusion pullers "must
maintain an uninterrupted constant speed on the product as it
passes through these devices in order for the cross-sectional
product dimensions to be maintained." Id. While the pullers do
in fact move the extruded profile from one place to another, they
are essential to maintaining the shape of the profile as it is
being cooled. Without these pullers, the profile would deform.
Attachment "A" of the protest provides further evidence of the
article's principal function, wherein it states that a
substantial benefit gained from the use of these pullers is the
production of straight, twist-free extrusions.
Accordingly, the extrusion pullers are classifiable under
Heading 8477, HTSUS, specifically under subheading 8477.59.00,
HTSUS, which covers other machinery for molding or otherwise
forming rubber. See NY 845797, dated October 1989 (machines that
supplied the pull required to process a plastic shape as it was
extruded were classified under subheading 8477.59.00, HTSUS).
HOLDING:
The extrusion pullers are classifiable under subheading - 4 -
8477.59.00, HTSUS, which provides for "[m]achinery for working
rubber or plastics or for the manufacture of products from these
materials, not specified or included elsewhere in this chapter
. . . [o]ther machinery for molding or otherwise forming . . .
[o]ther." The corresponding rate of duty for articles of this
subheading is 3.9% ad valorem.
Accordingly, 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