CLA-2 OT:RR:CTF:TCM HQ H249756 LOR
Tariff No.: 8479.89.98
Port Director
Service Port Charleston
200 East Bay Street
Charleston, SC 29401
Attention: Import Specialist T.J. Trimeloni
RE: Application for Further Review of Protest No. 1601-13-100211; tariff classification
of Weima Briquetting Presses: TH 714, TH 814 and TH 1500
This is in response to the Application for Further Review (AFR) of Protest No. 1601-13-100211, timely filed on behalf of Weima America, Inc. ("Weima"), on July 15, 2013. The protest concerns U.S. Customs and Border Protection's (CBP) tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain machines that are said to compact wood waste into briquettes.
FACTS:
The protested merchandise includes certain models of machines that compress waste materials into briquettes. The imported models include the TH 714, TH 814 and TH 1500 - machine numbers 970-427, 970-428, 980-271, 980-272, and 990-150. The WEIMA Briquette Presses are described as machines used to compact dust, shavings and chips which create a waste stream around the workplace. According to the available literature regarding the "Weima Briquette Press C-Series & TH-Series", a volume reduction of up to 90% is possible through the briquetting of a variety of materials such as wood, paper, aluminum, biomass or synthetics. The material is fed into the hopper by hand or in conjunction with a dust collection system. The agitator in the machine spins and pushes the material into an opening at the bottom of the unit. The waste material is compressed and agglomerated under extreme pressure to form a briquette. The briquette presses reduce the volume of space occupied by waste material.
Protest No. 2704-13-100211 involves merchandise entered August 2012, under subheading 8479.30.00, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: Presses for the manufacture of particle board or fiber building board of wood or other ligneous materials and other machinery for treating wood or cork.” After issuing a notice of Action (CBP Form 29), CBP liquidated the entries under subheading 8479.89.98, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: Other: Other: Other.”
WEIMA claims that the subject briquette presses are for shaping waste. WEIMA further claims that the presses at issue are for use in industrial wood working businesses, and that they compress and agglomerate wood waste which is produced in woodworking businesses, under extreme pressure to form a wood briquette. WEIMA requests classification in subheading 8479.30.00, HTSUS.
ISSUE:
Whether WEIMA’s briquetting presses, model numbers TH 714, TH 814 and TH 1500, are classified in subheading 8479.30.00, as machinery for treating wood or in subheading 8479.89.98, HTSUS, as other machines.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 2704-13-100211 is properly accorded to Protestant pursuant to 19 C.F .R. § 174.24 (b) because Protestant alleges that the matter involves questions of fact, and the application of law to those facts, which have not been ruled upon by CBP or the U.S. Court of International Trade.
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. GRI 6 states:
For legal purposes, the classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter, and subchapter notes also apply, unless the context otherwise requires.
The Harmonized Commodity Description and Coding System Explanatory Notes
("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither 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, 35128 (August 23, 1989).
The 2012 HTSUS headings at issue are as follows:
8479 Machines and mechanical appliances having individual
functions, not specified or included elsewhere in this chapter;
parts thereof:
8479.30.00 Presses for the manufacture of particle board or fiber
building board of wood or other ligneous materials and
other machinery for treating wood or cork
* * *
8479.89 Other
8479.89.98 Other
* * *
The ENs to heading 8479, HTSUS, provide the following, in pertinent part:
84.79 Machines and mechanical appliances having individual functions, not specified or
included elsewhere in this Chapter.
8479.30 Presses for the manufacture of particle board or fibre building board of wood or
other ligneous materials and other machinery for treating wood or cork
8479.89 Other
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).
* * *
(II) MACHINERY FOR CERTAIN INDUSTRIES
This group includes:
(C) Machinery for treating wood or similar materials, e.g.:
(2) Special presses for agglomerating wood fibre, wood chips, sawdust or cork dust.
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”:
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.
*
* *
It is undisputed by CBP and by WIEMA that the subject briquetting presses are classified in Chapter 84 and in heading 8479, HTSUS. The subject presses meet the requirements of classification as machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, of heading 8479, HTSUS, as set out in the heading text and the ENs. The issue arises at the 6-digit level, with respect to whether the subject briquetting presses are machines for the manufacture of particle board or fiber building board of wood or other ligneous materials and other machinery for treating wood or whether the presses are other machines having individual functions, not specified or included elsewhere in chapter 84 of the HTSUS. Accordingly, the 6-digit level of the HTSUS, and classification under GRI 6, are at issue.
WEIMA claims that its briquetting presses are classifiable in subheading 8479.30, HTSUS, because they are for use in industrial wood working businesses and they compress and agglomerate wood waste which is produced in woodworking businesses, under extreme pressure to form a wood briquette. Subheading 8479.30.00, HTSUS, is a principal use provision. WEIMA, however, has not provided documentation to support a claim that the briquetting presses are principally for use with wood, ligneous materials, or cork, as described in the subheading text of 8479.30, HTSUS, and as described in the ENs. As is further explained below, the information that WEIMA submitted and that appears on its website shows that the briquetting presses can be used to compress wood into briquettes and also to compress other materials into briquettes.
WEIMA further advises that its briquetting presses comport with the exemplars set forth in EN (II)(C)(2), which provide for “Special presses for agglomerating wood fiber, wood chips, sawdust or cork dust.” WEIMA asserts that as its presses agglomerate wood, they meet exemplar (II)(C)(2) in the EN’s, and that subheading 8479.30.00, HTSUS is more specific than subheading 8479.89.98, HTSUS, which provides for “other”. While subheading 8479.30.00, HTSUS, may be more specific by its terms, and covers one of the uses of the presses, the presses cannot be classified in that subheading if they are not principally used for the processes described in the subheading, and if the subheading therefore does not describe the presses. There is no other subheading under Chapter 84, HTSUS, which more completely describes the imported merchandise, than subheading 8479.89.98, HTSUS.
In its submission WEIMA asserts that the presses are for shaping waste, and that the imported presses are for use in Industrial Woodworking businesses. Additional U.S. Rule of Interpretation (“AUSRI”) 1(a) provides that a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. However according to WEIMA’s website:
TH Standard series is designed for processors requiring throughput rates of more than 80 kg per hour or more than 200 kg per day. Highly compact briquettes are possible with this sturdy press housing with materials such as; wood, polystyrene, foam, light alloy, paper or biomass.” With respect to its Industrial Series,
WEIMA’s website further provides that, “[T]he TH 1500 presses all compressible materials in an especially hardened form.” See, http://weima.com/usa/machinery/briquette-presses/th1500-3400-series/th1500.html. Other material on WEIMA’s website for the TH Standard series, states that “[t]he TH Standard Series compacts wood, polystyrene, foam, light alloy, paper or biomass.” See, http://weima.com/usa/machinery/briquette-presses/th-series/th-514.html.
WEIMA’s website showcases the various machine types and the materials that those machines process. For example, there is a category for “Machine type (all)” with a drop down arrow and a category for “Material (all)” with a drop down arrow. The machines that show under “Machine type (all)” and “Material (all)” are as follows:
TH 514-820 TH Vario Plus HD-Series TH 1500 C-Series
C 140
Using the dropdown arrow in the “Machine (all)” category permits the user to select either “Standard Briquette Presses” or “Industrial Briquette Presses”. The dropdown arrow under the “Material (all)” section also permits the user to select either “Plastic”, “Wood”, “Paper”, “Metal” or “Waste”. The user can then view the characteristics of the specific model. The chart below shows the various models and the materials that those models compact into briquettes:
Plastic
Wood
Paper
Metal
Waste
Standard
TH 514 - 820
TH 514-820
C-Series
C 140
TH 514-820
TH 514-820
Industrial
HD-Series - TH 1500
TH Vario Plus
HD-Series
TH 1500
TH Vario Plus
HD-Series
TH 1500
TH Vario Plus
HD-Series
TH 1500
TH Vario Plus
HD-Series
TH 1500
Consistent with the information in WEIMA’s submission and on its website, the imported the TH 714 and TH 814 models, fall within TH 514-820 series. These models are capable of compacting plastic, wood, paper, and metal in to briquettes.
Research by this office indicates that other manufacturers' briquetting presses are designed to compact multiple materials and that, even though a company may purchase or an individual may purchase a briquette press for a specific purpose, that very few briquetting presses are designed solely to compact wood or wood by-product. See, e.g., “Densifying Dynamos”, http://biomassmagazine.com/articles/12183/densifying-dynamos, which provides that “Using pressure, these machines compress woody biomass and other feedstocks into fuel products for use in industrial and residential applications.” See also, "Kit and Tools Tuesdays – Briquette Makers Archive" at http://www.woodworkersinstitute.com/woodworking-crafts/kit-tools/machinery/kit-and-tool.com, which advises that “[W]ooden briquettes are an ecological, 100% renewable biomass fuel. They are made from compressed sawdust and wood shavings or other biomass waste so there are no additives or binders used during the production process.” Therefore while the instant presses may have been imported for use with wood, there is no evidence that the principle use of the class of presses to which the imported machines belong, is for working with wood.
Based upon our review of the protest and our review of the information on WEIMA’s website, and additional information on briquetting presses, the subject presses cannot be classified in subheading 8479.30, HTSUS, because they are not principally used with wood. Therefore, at the time of entry, the briquetting pressing were properly classified in heading 8479, HTSUS, specifically subheading 8479.89.98, HTSUS.
HOLDING
By application of GRI 1 and GRI 6, the subject briquetting presses are classified in Heading 8479, HTSUS, specifically in subheading 8479.89.98, HTSUS which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: Other: Other.” The 2013 general column one duty rate was 2.5% percent ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation 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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP home page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division