CLA-2 OT:RR:CTF:TCM H242605 GC
Port Director
U.S. Customs and Border Protection
Norfolk Service Port
101 East Main Street Norfolk, VA 23510
RE: Revocation of HQ 961522; Tariff classification of a “grader system”
Dear Port Director:
On August 10, 1998, U.S. Customs and Border Protection (then the U.S. Customs Service) issued Headquarters Ruling Letter (HQ) 961522 to dispose of Application for Further Review of Protest 1401-98-100001, which pertained to the tariff classification of the instant “grader system”. We have since reviewed HQ 961522 and find it to be in error.
HQ 961522 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the United States and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR §174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 961522 when notice of disposition of the protest was received by the protestant. See San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).
However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930 [19 U.S.C. §1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the Customs Bulletin. This revocation will not affect the entries which were the subject of Protest 1401-98-100001, but will be applicable to any entries of similar merchandise made 60 days after publication of the final notice of revocation in the Customs Bulletin.
Pursuant to 19 U.S.C. §1625 (c)(1), a notice was published in the Customs Bulletin, Volume 49, No. 23, on June 10, 2015, proposing to revoke HQ 961522, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
The merchandise is described in HQ 961522 as follows:
The merchandise in issue is a grader system, also called a sizer or weight grader, used in the weighing, grading and sizing of chicken fillets and tenders, chunk meats, fish, and other food products. It consists essentially of infeed and take-away conveyors, a weighing machine or scale and, in this case, a batching bin. The product moves by infeed conveyor to the weighing machine which utilizes a weight sensor or load cell. This machine operates without interruption to weigh individual pieces and, based on weight, activates mechanical discharge arms that pull the product from the scale into the pneumatically-operated batching bin. When a predetermined weight of product is reached, the door to the batching bin closes and a signal light activates. A button is then pushed which permits the batched product to fall down the chute into bags or boxes which the take-away conveyor removes. The machinery does not mechanically wrap or package the product, nor does it replace full bags with empty ones. These functions are performed by a technician. There is no indication that this machinery is capable of detecting and removing defective product. The computer that monitors and controls the entire process is not a part of this importation.
In HQ 961522, CBP classified the above-described merchandise under subheading 8423.20.00, HTSUS, which provides for, “Weighing machinery (excluding balances of a sensitivity of 5 cg or better), including weight-operated counting or checking machines; weighing machine weights of all kinds; parts of weighing machinery: Scales for continuous weighing of goods on conveyers”, by application of General Rules of Interpretation (GRIs) 1, 3(b) and 6.
ISSUE:
Is the subject grader system classified under subheading 8423.20, HTSUS, as a scale for the continuous weighing of goods on a conveyor, or under subheading 8423.30, HTSUS, as a constant-weight scale and scale for discharging a predetermined weight of material into a bag or container?
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 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows:
8423 Weighing machinery (excluding balances of a sensitivity of 5 cg or better), including weight-operated counting or checking machines; weighing machine weights of all kinds; parts of weighing machinery:
* * *
8423.20.00 Scales for continuous weighing of goods on conveyors…
* * *
8423.30.00 Constant-weight scales and scales for discharging a predetermined weight of material into a bag or container, including hopper scales…
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
Subheading EN 8423.20 provides as follows:
The scales for continuous weighing of goods on conveyors of this subheading, which may be either of the totaliser or integrating kind, measure and record the weight of materials as they go past in buckets, on chains or the like.
There was no dispute in HQ 961522 that the subject grader system was classified under heading 8423, HTSUS, as weighing machinery. This remains CBP’s position.
However, in HQ 961522, applying GRI 6, CBP concluded that the grader system was a “composite good” of GRI 3(b) made up of a scale for continuous weighing of goods and a scale for discharging a predetermined weights of material. The conclusion that the subject merchandise constituted a “composite good” was premised on the conclusion that the scope of subheading 8423.20, HTSUS, covers “scales that operate in a continuous process with brief intervals or with continued recurrence”. Indeed, the fact that Subheading EN 8423.20 refers to measured materials located “in buckets, on chains or the like” clarifies that scales for continuous weighing can weigh materials that pass the scale sensor “with brief intervals or with continued recurrence”. However, in spite of the fact that the instant grader system incorporates a continuously moving conveyer belt, it is designed to weigh individual items, which is decidedly discontinuous and is not characteristic of a totalizer or integrating kind of scale described in Subheading EN 8423.20.
Accordingly, we find that the merchandise at issue in HQ 961522 does not perform a function covered by subheading 8423.20, HTSUS. Moreover, as a consequence of the fact that it is equipped with mechanical discharge arms to pull the chicken thighs from the scale into the pneumatically-operated batching bin, it is prima facie classifiable under subheading 8423.30, HTSUS, as a scale for discharging a predetermined weight of material into a bag or container.
HOLDING:
By application of GRI 1, the instant grader system is classified under heading 8423, HTSUS, as weighing machinery. By application of GRIs 1 and 6, it is specifically provided for under subheading 8423.30.00, HTSUS, which provides for: “Weighing machinery (excluding balances of a sensitivity of 5 cg or better), including weight-operated counting or checking machines; weighing machine weights of all kinds; parts of weighing machinery: Constant-weight scales and scales for discharging a predetermined weight of material into a bag or container, including hopper scales….” The general column one rate of duty, for merchandise classified in this subheading is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 961522, dated August 10, 1998, is hereby REVOKED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division