CLA-2 RR:CR:GC 965122 AML
Port Director
U.S. Customs Service
New York/Newark Seaport
Building # 77, JFK
Jamaica, NY 11430
RE: Protest 1001-00-104588; Model AD408P “Planetary Uncoiler Mainframe”
Dear Port Director:
The following is our decision regarding Protest 1001-00-104588, dated October 24, 2000, filed by counsel on behalf of OTO Mills, USA, Inc., against your classification of the OTO Model AD408P Planetary Uncoiler Mainframe, under the Harmonized Tariff Schedule of the United States (HTSUS). Technical literature was provided for our consideration. In preparing this ruling, consideration was given to arguments presented by counsel for the protestant in a teleconference on April 23, 2002, as well as those presented in a supplemental submission dated May 3, 2002.
FACTS:
Counsel for the protestant states that the uncoilers at issue, the OTO Model AD408P Planetary Uncoiler Mainframes, also known as decoilers, are used in connection with an OTO 1305 tube mill. The tube mill processes hot-rolled, flat-rolled, base metal strip into tube-like forms that will be welded at the seam by a separate machine into finished tubes. The uncoiler is designed and used to unwind coils of hot-rolled steel strip and feed the strip to an accumulator. From the accumulator, the strip is fed to a rolling mill that rolls the strip into tube-like shapes prior to welding.
The articles were entered on August 18, 1999, and the entries were liquidated on July 28, 2000, with classification under subheading 8479.89.97, HTSUS, which provides for machines and appliances having individual
functions, not elsewhere specified or included (in Chapter 84): other. The protest was filed on October 24, 2000.
ISSUE:
Whether the planetary uncoiler mainframe is classifiable as handling or unloading machinery under heading 8428, HTSUS, or as other machines and mechanical appliances having individual functions, not specified or included elsewhere (in Chapter 84), under heading 8479, HTSUS?
LAW and ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2000 HTSUS provisions under consideration are as follows:
8428 Other lifting, handling, loading or unloading machinery (for example, elevators, escalators,
conveyors, teleferics):
Other continuous-action elevators and conveyors, for goods or materials:
8428.90.00 Other machinery.
* * *
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
8479.89.97 Other.
We are presented with the unique situation in which both headings 8428 and 8479, HTSUS, are so-called "basket" provisions within Chapter 84. These are headings in which classification "is appropriate only when there is no tariff category that covers the merchandise more specifically." (Apex Universal, Inc., v. United States, CIT Slip Op. 98-69 (May 21, 1988).) Therefore, we are addressing the competing provisions within Chapter 84, headings 8428 and 8479, HTSUS, that the protestant alleges merit consideration.
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. Customs believes the ENs
should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
In Headquarters Ruling Letter (“HQ”) 965296, dated July 9, 2002, we classified a welded tube mill under heading 8462, HTSUS, which provides for machine tools (including presses) for working metal by bending, folding, straightening, flattening, shearing, punching or notching [.] A similar welded tube mill manufactured by the protestant (with which the uncoiler at issue is designed and intended to function) was classified under heading 8462, HTSUS, in HQ 965198, dated May 1, 2002.
The planetary uncoiler mainframes are prima facie classifiable in Chapter 84, which provides for, inter alia, machinery and mechanical equipment and parts thereof. Note 5 to Section XVI, HTSUS, provides that “for the purposes of these notes, the expression “machine” means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85 [underscoring in original].”
The General ENs to Chapter 84 provide, at page 1394, in pertinent part, that:
* * *
(3) Headings 84.25 to 84.78 cover machines and apparatus which, with certain exceptions, are classified there by reference to the field of industry in which they are used, regardless of their particular function in that field.
(4) Heading 84.79 covers machines and mechanical appliances not covered by any preceding heading of the Chapter.
* * *
The General ENs to Chapter 84 continue at page 1394, under subheading (D) “GOODS COVERED BY TWO OR MORE HEADINGS IN THE CHAPTER” and provide, in pertinent part, that:
Machines which fall in two or more headings, none of which is within headings 84.01 to 84.24, are classified in that heading which provides the most specific description of the goods, or according to the principal use of the machine. Multi-purpose machines which are used equally for a number of different purposes or industries (e.g., eyeletting machines used equally well in the paper, textile, leather, plastics, etc., industries) are classified in heading 84.79.
Heading 8428, HTSUS, provides for other lifting, handling, loading or unloading
machinery, for example, lifts, elevators, escalators, conveyors, teleferics at the superior heading level. The ENs to heading 8428, HTSUS, provide at page 1461, in pertinent part, as follows:
With the exception of the lifting and handling machinery of headings 84.25 to 84.27, this heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.). They remain here even if specialised for a particular industry, for agriculture, metallurgy, etc[.]
The provisions of Explanatory Note to heading 84.26 apply, mutatis mutandis, to the equipment of this heading insofar as they concern self-propelled and other “mobile” machines, multifunction machines and lifting, loading, handling, etc., machines intended for incorporation in other machines or for mounting on transport vehicles or vessels of Section XVII.
* * *
The heading covers lifting or handling machines usually based on pulley, winch or jacking systems, and often including large proportions of static structural steelwork, etc.
* * *
The ENs to heading 8428 continue at page 1464 and provide that:
Lifting or handling devices are often used with furnaces, converters, rolling mills, etc., e.g., machines for inserting, handling or withdrawing the pieces being worked; for manipulating doors, covers, hearths, etc.; tipping or tilting machines. When these machines form independent units clearly distinct from the furnaces, etc., they are classified in this heading even if presented with the furnaces, etc.
The planetary uncoiler mainframe is a specialized machine designed to uncoil/decoil hot-rolled, flat-rolled steel and feed the steel to an accumulator. While the article is designed to work in conjunction with a pipe and tube-welding machine, the article cannot be construed to be a “rolling mill.” Cf. the ENs to heading 8455, HTSUS, which describes at page 1539 rolling mills, in pertinent part, as follows:
Rolling mills are metal working machines consisting essentially of a system of rollers between which the metal is passed; the metal is rolled out or shaped by the pressure exerted by the rollers, and at the same time the rolling modifies the structure of the metal and improves its quality.
Similar machines for rolling materials other than metal, e.g., calenders, are excluded (heading 84.20). Other roller machines (e.g., for gumming metal foil on to a paper support (heading 84.20), bending, folding, straightening or
flattening machines (heading 84.62) are not regarded as rolling mills in the sense described above and are therefore also excluded from this heading.
* * *
The articles subject to this protest are not “rolling mills” as delineated by heading 8455, HTSUS, or the EN thereto. Hot-rolled, flat-rolled steel is a product of such a device. The ENs reference at page 1540 “auxiliary machinery” that is used with such articles; among the exemplars of such articles are “strip coilers.” The uncoiler/decoiler merely uncoils the rolls produced by such a machine. We find that the reference on page 1540 to “strip coilers” evinces an intent within the HTSUS to consider “coilers” to be articles other than those encompassed within handling machinery of heading 8428, HTSUS.
The protestant suggests that classification of the planetary uncoiler mainframes should be guided by three prior rulings: New York Ruling Letter (NY) F80576, dated January 4, 2000, which classified a machine that “picked and placed” steel slabs on a roller table for conveyance to a shear, press, or similar processing machine under heading 8428, HTSUS; NY F86966, dated June 8, 2000, which classified a machine for feeding prepunched blank ready to be bent under heading 8428, HTSUS; and NY 892174, dated December 3, 1993, which classified a machine for dispensing bales of hay under heading 8428, HTSUS. NYs F80576 and F86966 are distinguishable by the fact that the articles in those cases were designed as components of multi-function machines; both rulings classified the articles under heading 8428, HTSUS, only in the instances in which they were imported separately from any other article (see the Notes to Section XVI and Chapter 84). NY 892174 is distinguishable by the fact that the function of the mobile article in that case was to dispense hay as animal feed. As is discussed below, articles known as “coilers” appear to be machines with individual functions (and not specified or included elsewhere within Chapter 84) as contemplated within heading 8479, HTSUS, and the ENs thereto.
The HTSUS, which went into effect January 1, 1989, is a relatively new tariff system with rules of interpretation and application somewhat different from the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS. As noted in House Conference Report No. 100-576, dated April 20, 1998, on the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100-418), decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis, prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.
In Customs Decision (“C.D.”) 4666, dated August 5, 1976, certain wire rod coiling equipment (invoiced as “Combination Garrett/Edenborn Reels”) was classified in item 678.50, Tariff Schedules of the United States (“TSUS”), the predecessor to
heading 8479, HTSUS. In so finding, the Customs Court noted (citing General Methods Corp. v. United States, 59 CCPA 109, 112, C.A.D. 1049, 458 F. 2d 521
(1972) and United States v. Andrew Fisher Cycle Co., Inc., 57 CCPA 102, 107, 426 F. 2d 1308, 1311-12, C.A.D. 986 (1970) that:
[T]ariff provisions do not necessarily include everything that falls within their literal meaning”, but the court admonished that “the basis for avoiding the literal interpretation of a provision must be clearly established.” Where a literal interpretation would defeat congressional intent, a sound basis exists for eschewing a literal construction.
As noted above, 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.
Protestant cites certain heading 8428 ENs at page 1200 in support of the claimed classification. These notes describe lifting or handling devices used with furnaces, converters, rolling mills, etc., e.g., machines for inserting, handling or withdrawing the pieces being worked. Examples of these devices are coke oven discharging machines, ram or piston operated charging machines for converters, special lifting machines for raising the covers of metallurgical annealing or soaking pits, or for lifting out the ingots, ingot or forging manipulators, tilters, etc., and machines used with furnaces that utilize cylinders fitted with rams or pistons to insert or remove objects that are being treated in the furnace. The planetary uncoiler mainframes at issue are not similar in function to these machines. Rather, we find them to be similar to the strip coilers referenced in heading 8455, HTSUS, and, as discussed below, to the coilers described under heading 8479, HTSUS. We conclude that the articles are not specifically provided for under heading 8428, HTSUS.
The ENs to heading 8479 provide, at page 1597, in pertinent part, that:
This heading is restricted to machinery having individual functions, which:
(a) Is not excluded from this Chapter by the operation of any Section or
Chapter Note.
and (b) Is not covered more specifically by a heading in any other Chapter of
the Nomenclature.
and (c) Cannot be classified in any other particular heading of this Chapter
since:
(i) No other heading covers it by reference to its method of
functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the
industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such headings
(general purpose machines) [bold in original].
The machinery of this heading is distinguished from the parts of machinery, etc., that fall to be classified in accordance with the general provisions concerning parts, by the fact that it has individual functions.
For this purpose the following are to be regarded as having “individual functions”:
(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other
machine or appliance.
* * *
The many and varied machines covered by this heading include inter alia:
* * *
(E) Machinery for treating metals, including electric wire coil-winders, e.g.:
* * *
(7) Electric wire coil-winders (e.g., for motors, transformers or inductors).
* * *
(18) Coiling machines for flexible cables or tubes (e.g., for textile or metal cables or ropes, electric cables, lead pipes).
EN 84.79, (I) Machinery of General Use (3), lists as an example of the articles included in heading 8479, HTSUS, "mechanical distributors for continuous presentation of work pieces in the same alignment ready for the working operation, not specialized for any particular industry." Customs has ruled that welding is a process and does not denote a "particular industry" for purposes of this provision (see HQ 957460, dated April 26, 1995). Therefore, work piece positioners not related to conveyors have been classified in heading 8479 (HQ 957460 and HQ 962105). There is no evidence that the hot-rolled, flat-rolled steel has been or is “specialized for a particular industry.” Similarly, in this case, we conclude that the planetary uncoiler mainframes are "more akin by function to the cited description in [EN] 84.79" (see HQ 962105) than to the function of the conveyors of heading 8428, HTSUS.
We find virtually no distinction between a machine that coils metals and those at issue that uncoil or decoil metals. That is, we find that the planetary uncoiler
mainframes at issue are ejusdem generis with the coiling machines provided for in the
ENs to heading 8479, HTSUS. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986).
We are further persuaded by the conclusions reached in the following rulings:
In HQ 086736, dated June 7, 1990, we classified tandem coilers used in coiling aluminum strip under subheading 8479.89.90 (now 8479.89.98), HTSUS. In NY 875624, dated July 23, 1992, we held that a “Model K-703 Uncoiler” that “basically feeds the steel coil into the roll leveler” was classified under subheading 8479.89.90, HTSUS. In HQ 963154, dated February 3, 2000, we held that machines that “wind or coil two pieces of carbon coated foil” were classifiable under subheading 8479.89.98, HTSUS.
The planetary uncoiler mainframes are not excluded from classification within Chapter 84, HTSUS, pursuant to Section XVI and Chapter 84, HTSUS, notes and, as
stated previously, they are not more specifically covered by another heading in the HTSUS. Additionally, the planetary uncoiler mainframes cannot be classified in any
other heading of Chapter 84, HTSUS, because no other heading covers them by reference to their function, description or type, nor by reference to their use or to the industry in which they are employed.
We are of the opinion that the purpose of the coilers in the ENs to heading 8479, HTSUS, as well as their method of operation, is substantially similar to the planetary uncoiler mainframes at issue. Additionally, Note 7, Chapter 84, HTSUS, states that:
Subject to note 2 to this chapter and note 3 to section XVI, a machine the principal purpose of which is not described in any heading or for which no one purpose is the principal purpose is, unless the context otherwise requires, to be classified in heading 8479[.]
Based on Note 7, Chapter 84, HTSUS, EN 84.79, and the previous rulings cited above, the planetary uncoiler mainframes are classified under heading 8479, HTSUS.
HOLDING:
The OTO Model AD408P Planetary Uncoiler Mainframes are classified under subheading 8479.89.97, HTSUS, which provides for machines and appliances having individual functions, not elsewhere specified or included (in Chapter 84): other
machines and mechanical devices: other: other.
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 are to 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 (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division