CLA-2 RR:CR:GC 966306 DSS
Ms. Jessica M. Schaefer
MBW, Inc.
P.O. Box 440
250 Hartford Road
Slinger, WI 53086
RE: Ruling Request for Vibratory Plates and Rammers; Headings 8429 and 8467; tools for working in the hand; self-propelled tamping machines; ENs 84.29, 84.67; GRI 3(a); Carl Zeiss, Inc. v. U.S.
Dear Ms. Schaefer:
In your letter to the Director, National Commodity Specialist Division (NCSD), New York, dated March 3, 2003, you inquire as to the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain vibratory plates and rammers. Your letter was forwarded to this office for reply.
FACTS:
Your inquiry relates to the following models:
Vibratory Plates Models GP1300H, GP1300R, GP1800H, GP1800R, GP3000H, GP3000R, GP3000Y, GP3000-15H, GP3000-15R, GP4000H, GP5500H, GP5500R, GP5500Y, AP2000H, AP2000R, AP2000SH, AP2000SR;
Hydraulic Reversible Plate Series Models GPR 65, GPR 68, GPR 78H, GPR 78D, GPR 99H, GPR 135D, GPR 135DE; and
Rammers Models R270R, R270ROI, R450R, R450ROI, R451R, R451ROI, R460, R461, R470, R471, R480, R481.
Submitted literature describes a series of vibratory plates and rammers for use in road work, construction, paving and other earthworks applications. Vibratory plates mainly are used for compressing earth, clay or gravel, prior to the installation of concrete or other materials. Rammers are used for compaction in narrower areas than the vibratory plates. The listed models weigh from 120 pounds to 924 pounds and are hand operated or controlled from behind by means of handlebars or yokes utilizing a self-contained, gasoline motor. There is also a pneumatic rammer, available in two models – the R450A and R451A – which weighs between 125 and 130 pounds.
ISSUE:
Whether the articles are classifiable as self-propelled tamping machines under heading 8429, HTSUS, as other tamping machines under heading 8430, HTSUS, or as tools for working in the hand, pneumatic, hydraulic, or with self-contained electric or non-electric motor under heading 8467, HTSUS.
LAW AND ANALYSIS:
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. GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are, prima facie, classifiable under two or more headings. In such a case, classification of the goods shall be effected as follows: “[GRI 3](a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description.”
The HTSUS provisions under consideration are as follows:
Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers:
8429.40.00 Tamping machines and road rollers
* * * *
Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores; pile-drivers and pile-extractors; snowplows and snowblowers:
Other machinery, not self-propelled:
8430.61.00 Tamping or compacting machinery
* * * *
Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor, and parts thereof:
Other tools:
8467.89 Other: 8467.89.50 Other:
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Relevant ENs indicate that the machines of heading 8429, HTSUS, include self-propelled tamping machines which are used in road building.
EN 84.29 states that:
The heading covers a number of earth digging, excavating or compacting machines which are explicitly cited in the heading and which have in common the fact that they are all self-propelled.
The provisions of Explanatory Note to heading 84.30 relating to self-propelled and multi-function machines apply, mutandis mutatis, to the self-propelled machinery of this heading, which includes the following:
* * * (H) Tamping machines as used in road making, for packing rail-road ballast, etc. . . . .
EN 84.30 states that heading 8430, HTSUS, classifies tamping machines that are not self-propelled. However, the instant vibratory plates and rammers are self-propelled tamping machines and are specifically classified under heading 8429, HTSUS. See HQ 089015, dated July 26, 1991.
In New York Ruling Letter (NY) 842039, dated June 15, 1989, however, in pertinent part, we classified similar vibratory plates and rammers under heading 8467, HTSUS, which provides, in pertinent part, for “tools for working in the hand.” In NY 842039, the vibratory plates and rammers involved were used in compacting earth or dirt prior to the pouring of concrete.
According to GRI 3(a), the merchandise in question must be classified pursuant to the heading providing the most specific description. See Better Home Plastics Corp v. United States, 20 C.I.T. 221, 222; 916 F. Supp. 1265, 1266 (1996). Moreover, EN 3(a)(IV)(a) states in pertinent part that “a description by name is more descriptive than a description by class.” Indeed, the Court of Appeals for the Federal Circuit states that under the rule of specificity, “the court w[ill] look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty.” See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1380 (Fed. Cir. 1999) (citing Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998)). The term “self-propelled tamping machines” would appear to be more descriptive of the machines under consideration than the term “machines for working in the hand” because the former term is more restrictive and has terms that are more difficult to satisfy.
The ENs to heading 8467 provide, in pertinent part, that:
The heading covers such tools only if for working in the hand. The expression "tools for working in the hand" means tools designed to be held in the hand during use, and also heavier tools (such as earth rammers) which are portable, that is, which can be lifted and moved by hand by the user, in particular while work is in progress, and which are also designed to be controlled and directed by hand during operation. To obviate the fatigue of taking their full weight during operation they may be used with auxiliary supporting devices (e.g., tripods, jacklegs, overhead lifting tackle). . . .
The instant machines should be classified under subheading 8429.40.00, HTSUS, as self-propelled tamping machines, according to GRI 3(a). In this case, subheading 8429.40.00, HTSUS, is the provision with the requirements that are more difficult to satisfy and that describes the instant vibratory plates and rammers with the greater degree of accuracy and certainty. The heading 8467, HTSUS, tools for working in the hand, covers a wide range of tools for working in the hand. Heading 8429, HTSUS, on the other hand covers a narrower range of earth digging, excavating or compacting machines that are explicitly cited in the heading text. Most importantly, the machines must be self-propelled. We believe that self-propelled earth compacting rammers are more accurately and specifically described by subheading 8429.40.00, HTSUS.
In NY 842039, dated June 15, 1989, we classified similar vibratory plates and rammers used in the construction and road building industries under heading 8467, HTSUS, which provides, in pertinent part, for “tools for working in the hand.” In NY 842039, the vibratory plates and rammers involved were used in compacting earth or dirt prior to the installation of concrete. However, as stated above, self-propelled vibratory plates and rammers, are properly classified under subheading 8429.40.00, HTSUS, as self-propelled tamping machines. Therefore, we intend to modify NY 842039 to reflect this classification.
HOLDING:
Under the authority of GRI 3(a), the instant vibratory plates and rammers are provided for in heading 8429, HTSUS. They are classified under subheading 8429.40.00, HTSUS, which provides for “Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers: Tamping machines and road rollers.”
Sincerely,
/s/
Myles B. Harmon
Director,
Commercial Rulings Division