CLA-2 RR:TC:MM 959008 JAS
Port Director of Customs
35 West Service Road
Champlain, NY 12919
RE: PRD 0712-95-101261; Soil Stabilizer, Asphalt Recycler;
Wheeled Machine With Cutting Rotor for Breaking Up Soil
and/or Asphalt and Adding Stabilizing Materials; Heading
8429, Self-Propelled Excavator; Other Excavating Machinery;
Special Purpose Motor Vehicle, Heading 8705; Section XVI,
Note 1(l)
Dear Port Director:
This is our decision on Protest 0712-95-101261, filed
against your classification of soil stabilizing machinery,
designated the RACO 250, manufactured in Germany. The entry
under protest was liquidated on November 13, 1995, and this
protest timely filed on December 15, 1995.
FACTS:
Submitted literature describes the RACO 250 soil stabilizer/
asphalt recycler as a diesel-powered, wheeled vehicle with rear-mounted cab. It measures 29 ft. 2 in. x 9 ft. 10 in. x 11 ft. 15
in. The vehicle has a 2-speed transmission with a maximum
forward speed of 11.8 km/h. and hydrostatic brakes. It features
a hydrostatic drive, electrically controlled rotor capable of up
to 155 rpm. The rotor is positioned at the midpoint of an
articulated frame and has a working width of 94.5 in., a working
depth of 16.5 in., and features 54 spade teeth in its soil
stabilization application and 140 point teeth in its asphalt
recycling application. The RACO 250 functions in a rotating
motion both to loosen soil and to pulverize asphalt. It is
equipped with a hydraulically adjustable mixing chamber that
permits adding lime or asphalt emulsion to stabilize the mix
prior to compacting.
- 2 -
The RACO 250 was originally entered as a special purpose
motor vehicle of heading 8705, Harmonized Tariff Schedule of the
United States (HTSUS). The entry was liquidated, however, under
a provision in heading 8430, HTSUS, as other excavating
machinery. Protestant now maintains the RACO 250 is a self-propelled excavator of heading 8429, HTSUS.
The provisions under consideration are as follows:
8429 Self-propelled...excavators:
8429.59 Other:
8429.59.50 Other...2 (now 1.5) percent ad valorem
* * * *
8430 Other...excavating...machinery, for earth, minerals or ores;...:
8430.50 Other machinery, self-propelled:
8430.50.50 Other...2 (now 1.5 percent) ad
valorem
* * * *
8705 Special purpose motor vehicles, other than those principally designed for the transport of persons or goods...:
8705.90.00 Other...3 (now 2.2) percent ad valorem
ISSUE:
Whether the RACO 250 is excavating machinery of heading
8430.
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 - 3 -
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 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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
Initially, if the RACO 250 is a special purpose motor
vehicle of heading 8705, it cannot be classified either in
heading 8429 or in heading 8430. See Section XVI, Note 1(l),
HTSUS. In this regard, the ENs at p. 1430 state, in relevant
part, that vehicles of heading 87.05 which comprise excavating
machinery, among others, must form what is in fact an essentially
complete motor vehicle chassis or lorry in that it has at least
the following mechanical features: propelling engine, gear box
and controls for gear-changing, and steering and braking
facilities. The RACO 250 has these features. However, the ENs
go on to exclude from heading 87.05 self-propelled wheeled
machines in which the chassis and the working machine are
specially designed for each other and form an integral mechanical
unit (e.g., self-propelled motor graders). In such cases the
machine is not simply mounted on a motor vehicle chassis, but is
completely integrated with a chassis that cannot be used for
other purposes. Our review of the technical literature indicates
the RACO 250 is not an excavating machine mounted on a motor
vehicle chassis but, in fact, the working machine (i.e., rotor)
and chassis form an integral mechanical unit. Therefore, the
RACO 250 is not a special purpose motor vehicle of heading 87.05.
Heading 8429 in part covers a number of machines eo nomine,
by name, which have in common the fact that they are all self-propelled. The RACO 250 is designated a soil stabilizer/asphalt
recycler. There is no indication that it is commonly bought and - 4 -
sold, or regarded commercially as an excavator. On the other
hand, the ENs at pp. 1204 and 1205 list the following:
(I) EARTH EXCAVATING, SCRAPING OR LEVELLING MACHINERY
* * *
(D) Rippers, rooters and scarifiers fitted with cutting teeth
which loosen the top soil, break up old road surfaces, etc.,
prior to re-laying.
These ENs appear to describe the RACO 250.
HOLDING:
Under the authority of GRI 1, the RACO 250 soil
stabilizer/asphalt recycler is provided for in heading 8430. It
is classifiable in subheading 8430.50.50, HTSUS. Since the rate
of duty under this provision is the same as the liquidated rate,
this protest should be ALLOWED. 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
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
Tariff Classification
Appeals Division