CLA-2:CO:R:C:M 956922 JAS
District Director of Customs
1 East Bay Street, Rm. 104
Savannah, GA 31401
RE: PRD 1703-94-100073; Walkways and Stairways for Paper
Finishing Machines, Heading 8439, Parts of Machinery
for Making Paper or Paperboard; Structural Components,
Structures and Parts of Structures, Heading 7308;
HQ 084140
Dear Sir:
This is our decision on Protest 1703-94-100073, filed
against your action in classifying certain walkways and stairways
for use with paper making or finishing machines. The entry under
protest was liquidated on March 24, 1994, and this protest timely
filed on June 22, 1994.
FACTS:
The merchandise in issue is certain walkways, guardrails,
stairways, handrails, and spring loaded gates, all of iron or
steel, from Finland. They consist primarily of panels of metal
grating and tubes, but also angles, shapes and sections that are
connected by a combination of screws and bolts and welding. They
are used with paper making, coating or finishing machines.
Certain sections of this merchandise are hinged and either pivot,
fold up, or are removable. This permits the changing or
maintenance of parts and worker access to junction boxes, valves,
and other operating components. There is no indication that
these base metal articles are mechanical or perform any function
necessary to the operation of the paper machine, nor are they
fitted with wiring or conduits for transmitting power among the
various components of the machine.
These articles were entered under a provision in heading
8439 for parts of machinery for making paper or paperboard.
Protestant maintains that these articles are parts for tariff
purposes because they are integral parts of the machines, in some
instances form part of the structural support for the machines, - 2 -
and support piping, electrical cables and other components
necessary to operate the machines. The import specialist
liquidated the entry under a provision in heading 7308 for
structures and parts of structures, of base metal.
The provisions under consideration are as follows:
7308 Structures and parts of structures of
iron or steel:
7308.90 Other:
Other:
7308.90.95 Other...5.7 percent ad valorem
* * * *
8439 Machinery for making pulp of fibrous
cellulosic material or for making or
finishing paper or paperboard; parts thereof:
Parts:
8439.99 Other:
8439.99.10 Of machinery for making paper
or paperboard...Free
ISSUE:
Whether the base metal components are parts 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.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the Customs Cooperation
Council's official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and
therefore not dispositive, the ENs provide a commentary on the
scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System. Customs believes the notes should always be - 3 -
consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
There is no compelling argument that these base metal
components are integral, constituent or components necessary to
the proper operation of a paper machine, and without which the
machines cannot function. Any argument that they are essential
for the safety of the machines in that they provide worker access
for repair and maintenance purposes, or in any way protect the
workers themselves is not sufficient to establish their tariff
status as parts. In fact, the documentation indicates that
worker access is often denied when certain sections of the
machine are running. That the stairways and walkways may
function as supports for the machines' ductwork, cables and drive
motors is likewise insufficient. There is a more compelling
argument that it is these components and not the walkways and
stairways that are parts of the paper machines.
As to the applicability of heading 7308, relevant ENs at p.
1020, state that heading covers structures and parts of
structures, of base metal. These structures are characterized by
the fact that once placed in position they generally remain in
that position. They are usually made up from bars, tubes,
plates, etc., and are connected by riveting, bolting or welding.
The notes list the following among the goods included in heading
7308: pit head frames and superstructures, tubular scaffolding
and similar equipment, masts, gangways, rails, etc. for ships,
balconies and varandahs, assembled railings and protective
barriers. Among the features these articles have in common are
their static nature and immovability, and the fact they support
persons or other articles. The walkways, stairways, handrails
and gates in issue are compellingly analogous to these exemplars.
HQ 084140, dated July 18, 1989, dealing in part with base metal
walkways used with hydroelectric plants, is in accord.
HOLDING:
Under the authority of GRI 1, the base metal articles in
issue are provided for in heading 7308. They are classifiable in
subheading 7308.90.95, HTSUS.
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision - 4 -
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division