CLA-2 OT:RR:CTF:EMAIN H289652 PF
Port Director
Service Port Norfolk-Newport News
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
Attn: Waiyin Lee, Senior Import Specialist
Re: Protest and Application for Further Review No: 1401-2017-100503; Classification of a size reduction machine
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 1401-2017-100503, which was filed on August 1, 2017 on behalf of Vecoplan Maschinenfabrik GmbH & Co. KG. (“Vecoplan” or “protestant”). The protest pertains to the classification of a size reduction machine under the Harmonized Tariff Schedule of the United States (“HTSUS”).
The subject merchandise was entered by protestant on May 5, 2017. On July 7, 2017, CBP at the Port of Norfolk liquidated the entry under subheading 8479.89.94, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other.” On August 1, 2017, protestant filed a protest and AFR regarding the tariff classification of the subject merchandise and claiming that the correct classification of the subject merchandise should be in subheading 8479.82.00, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter, parts thereof: Other machines and mechanical appliances: Mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines.”
In reaching the determination set forth below, we have taken into consideration the protest and arguments submitted by protestant on May 5, 2017 and August 12, 2017.
FACTS:
The subject size reduction machine is designed for processing plastic waste for reclamation and recycling large extruder purgings, large reject parts, trim scraps, baled or loose film, synthetic fiber, wood processing scrap, medical waste, cardboard, paper, and carpet. The size reduction machine features a large feed hopper, precision hydraulic “process ram,” cutting inserts, counter knife, and a cutting rotor. The materials are loaded into the hopper, which are dropped directly inside a cutting chamber. Thereafter, a ram feeds the material into the space between a cutting rotator and a counter knife. The counter knife works in conjunction with the rotor, which has a plurality of multi-point cutters, to cut material fed into the space where the rotor and counter knife converge. The processed material exits through a screen that surrounds a portion of the circumference of the rotor. Pieces that are too large to pass through the screen are carried by the rotor back to the counter knife to be cut again.
The protestant provided pictures of the different materials, which are provided below. The pictures show aluminum and copper radiators, aluminum box lights, and woven seatbelts that have been reduced into smaller pieces.
Vecoplan and its subsidiary company, Vecoplan LLC, is the owner of two patents, Patent No. 6,837,453 and Patent No. 9,144,803, that contain multi-point cutters similar to the ones contained in the subject size reduction machine. Patent No. 6,837,453, named a “Shredder,” describes the invention as a “rotary shredder for shredding various materials including fibrous materials . . .” and notes that the “rotor carries a plurality of cutters.” This patent also provides that the cutters “are positioned to work in conjunction with the counter knife to cut material that accumulates between adjacent V-cutters.” Patent No. 9,144,803, named a “Shredder with Multi-Point Cutters,” notes that “[m]aterial fed into the space between the rotor and counter knife is cut into pieces by the cutters . . . .” Moreover, the international classification for Patent No. 9,144,803 is listed as B02C18/00, which corresponds to “Disintegrating by knives or other cutting or tearing members which chop material into fragments.”
Marketing materials for two different models of the size reduction machine describe them as “shredders.” The product literature for the “New Generation Shredders VAZ 1300-VAZ 1600” size reduction machine refers to “Reversible counter knives located in the bed of the cutting chamber. . . .” Moreover, the product literature for the VAZ 1800 size reduction machine refers to a “wear resistant cutting chamber.”
ISSUE:
Whether the size reduction machine is classified in subheading 8479.82.00, HTSUS, as a crushing, grinding, or screening machine or in subheading 8479.89.94, HTSUS, as an “other” machine having an individual function.
LAW AND ANALYSIS:
Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first 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 Protests No. 3004-17-100339 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading 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 2017 HTSUS subheadings under consideration are as follows:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof
Other machines and mechanical appliances
* * *
8479.82.00 Mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines
* * *
8479.89.94 Other
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).
There is no dispute that the subject size reduction machine meets the requirements for classification as a machine and mechanical appliance having an individual function, not specified or included elsewhere in this chapter, of heading 8479, HTSUS. Rather, the issue is the proper classification at the subheading level, specifically whether the size reduction machine falls within the scope of subheading 8479.82.00, HTSUS. Accordingly, GRI 6 applies.
Protestant maintains that the subject size reduction machine should be classified under subheading 8479.82.00, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Mixing, kneading, crushing, grinding, screening, sifting, homogenizing, emulsifying or stirring machines.” The protestant further contends that the subject size reduction machine crushes, grinds, and screens materials into smaller particles and pieces of random and irregular shapes.
Neither the HTSUS or the ENs define the terms “crushing,” “grinding,” or “screening.” When terms are not defined in the HTSUS or the ENs, they are construed in accordance with their common and commercial meaning. See Toyota Motor Sales (USA), Inc. v. United States, 7 CIT 178, 182, 585 F. Supp. 649, 653 (1984), aff'd, 753 F.2d 1061 (Fed. Cir. 1985); Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Dictionaries and other lexicographic authorities may be utilized to determine a term's common meaning. Mast Indus., Inc. v. United States, 9 CIT 549 (1985), aff'd, 786 F.2d 1144 (Fed. Cir. 1986). The Oxford English Dictionary defines “crush” as to “[d]eform, pulverize, or force inwards by compressing forcefully,” and Merriam-Webster’s Dictionary defines crush as “to squeeze or force by pressure so as to alter or destroy structure,” and “to reduce to particles by pounding or grinding.” With respect to “grind,” the Oxford English Dictionary defines it as to “[r]educe (something) to small particles or powder by crushing it,” and Merriam-Webster’s Dictionary defines grind as “to reduce to powder or small fragments by friction (as in a mill or with the teeth).” In addition, the Oxford English Dictionary defines “screen” as a “large sieve or riddle, especially one for sorting substances such as grain or coal into different sizes,” and Merriam-Webster’s Dictionary defines “screen” as “a perforated plate or cylinder or meshed wire or cloth fabric usually mounted and used to separate coarser from finer parts.”
The dictionary definitions of “crush” contain the requirement that there be a deliberate application of pressure or force to an article with the purpose of destroying it by drastically altering its shape or condition. In addition, the dictionary definition of “grind” requires that an article be reduced to powder or small particles by crushing. That has not taken place in this instance as the subject size reduction machine does not use friction, pressure, or force to reduce materials to smaller sizes. Moreover, the exhibits provided by the protestant show that the material processed by the size reduction machine retain their shape and configuration. While the materials processed by the size reduction machine have been reduced in size, they have not been “crushed” or “grinded.” For example, Exhibits 3A and 3C are said to show the condition of materials that have undergone processing by the size reduction machine. However, the material contained in Exhibits 3A or 3C have not been ground up into powder or particles. The material is recognizable as wiring, terminal boxes, and switches. By contrast, these materials have been cut rather than ground or crushed. This is consistent with how the merchandise is characterized in marketing materials and protestant’s patents (i.e. not as a crushing or grinding machine, but as a shredder).
The size reduction machine functions like a shredder because material placed in the machine is continuously cut by cutters into smaller pieces. In addition, marketing materials for two different models of the size reduction machine describe them as “shredders.” The product literature for the “New Generation Shredders VAZ 1300-VAZ 1600” refers to “Reversible counter knives located in the bed of the cutting chamber. . . .” Moreover, the product literature for the VAZ 1800 reduction machine refers to a “wear resistant cutting chamber.” The protestant maintains that the term “shredder” is used to describe its machines for marketing purposes only and does not represent a description of the technical function of the subject size reduction machine. However, the size reduction machine is also described as a “shredder” in the descriptions of its patents with multi-point cutters. One patent named “Shredder” describes the invention as a “rotary shredder for shredding various materials including fibrous materials . . .” and noting that the “rotor carries a plurality of cutters.” This patent also notes that the cutters “are positioned to work in conjunction with the counter knife to cut material that accumulates between adjacent V-cutters.” Moreover, a second patent named “Shredder with multi-point cutters,” states that that “[m]aterial fed into the space between the rotor and counter knife is cut into pieces by the cutters . . . .” Notably, the international classification for the “Shredder with multi-point cutters,” patent is listed as B02C18/00, which corresponds to “Disintegrating by knives or other cutting or tearing members which chop material into fragments.” Therefore, based on our review of the product descriptions, product literature, and the patents that involve similar technology, we find that the subject size reduction machine does not have the functions of subheading 8479.82.00, HTSUS, and therefore does not fall under the scope of subheading 8479.82.00, HTSUS.
Moreover, while the subject machines perform a screening function, such a function is subsidiary to the operation of cutting the materials passing through them. The multi-point cutters and counter-knife of the size reduction machines work together to shred the materials into pieces small enough to pass through the screen. Pieces that are too large to pass through the screen are carried by the rotor back to the counter knife to be cut again. The fact that screening only occurs after the material has been cut by the rotor and counter knife indicates that screening is not the primary function of the size reduction machine. Therefore, the size reduction machine is not a “screening” machine of subheading 8479.82.00, HTSUS.
The functions performed by the size reduction machine is a cutting function similar to the functions described in Headquarters Ruling Letter (“HQ”) 955395, dated February 14, 1994 and New York Ruling (“NY”) G81561, dated September 14, 2000. In HQ 955395, CBP classified a scrap chopper that contained two rotating cutter heads, each containing four cutting knives that cut metal scrap into uniform lengths in subheading 8479.89.90, HTSUS (the predecessor subheading to current subheading 8479.89.94). Similarly, in NY G81561, a scrap shredder cut defective wire into smaller pieces using rotors that were attached to knives to shred the wire and a screen to ensure that the shredded wire was reduced to the desired size. The pieces that were too large to fall through a screen were returned to the unit for further shredding. CBP rejected the proposed classification of the screen shredder under 8479.82.00, HTSUS, reasoning that the machine did not crush or grind the scrap, but cut the scrap into smaller pieces. CBP further determined that cutting was not a function covered by subheading 8479.82.00, HTSUS, and that while the machine performed a screening function, it was not its principal function. As a result, CBP classified the scrap shredder under subheading 8479.89.97, HTSUS (the predecessor subheading to current subheading 8479.89.94).
Protestant claims that the machines in NY 810386, dated June 6, 1995, NY 869355, dated December 17, 1991, NY 877661, dated September 15, 1992, NY E80272, dated May 6, 1999 have similar functions similar to the subject size reduction machine because they use pressure to crush, grind, and screen materials. In addition, protestant claims that the “SW-series” machines in NY E85833, dated September 2, 1999, used a process virtually identical to the subject size reduction machine.
In NY 810386, the machines at issue included a (1) granulator which used a rotating drum equipped with knives to reduce tires to granules; (2) a primary screen that separated the granules; and (3) a fine mill which contained five axial blades mounted on a rotor and three counterblades fixed to a stator to further reduce any granules over 3.5 millimeters in size. In NY 869355, the machine was described as a waste reduction mill that used centrifugal forces, in combination with replaceable wear bars and knives, to creating a grinding action to destroy materials. CBP classified the waste reduction mill in subheading 8479.82.00, HTSUS. In NY 877661, CBP classified a crush and sieve unit and a H.I.D. lamp crusher which crushed fluorescent tubes and street lamps under subheading 8479.82.00, HTSUS. In NY E80272, the machines were used to crush metal pieces into different sizes using pressure generated by a toothed jaw-like mechanism. CBP classified the crushing machine in NY E80272 in subheading 8479.82.00, HTSUS. Finally in NY E85833, CBP classified screening machines that were used to screen a wide range of materials and used a hopper and a screening drum in subheading 8479.82.00, HTSUS.
The rulings cited by protestant are distinguishable because the machines at issue in those cases were specifically provided for in subheading 8479.82.00, HTSUS. Unlike the machines in NY 810386, the subject size reduction machine does not reduce materials to granules. As discussed, the exhibits provided by the protestant show that the materials retain their shape and configuration. Moreover, the size reduction machine’s function is not to grind or to crush compared to the machines in NY 869355, NY 877661, or NY E80272, nor does the size reduction machine use centrifugal forces or pressure similar to the machines in NY 869355 and NY E80272. While the size reduction machine has a screening functionality, it is not its primary function in contrast to SM-series machines in NY E85833 that were described as “mobile screening machines” and screened materials by means of a rotating screening drum. Therefore, the subject size reduction machine is properly classified in subheading 8479.89.94, HTSUS, as an “other” machine having an individual function.
HOLDING:
By application of GRIs 1 and 6, the size reduction machine is classified in heading 8479, specifically subheading 8479.89.94 of the 2017, HTSUS, which provides, in relevant part, for: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other.” The 2017 general column one, rate of duty is 2.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to DENY the Protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 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 Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at 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