CLA-2 OT:RR:CTF:EMAIN H303306 PF
Port Director
Service Port Norfolk-Newport News
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
Attn: Deborah L. Ryan, Supervisory Import Specialist
Re: Protest and Application for Further Review No: 4601-2018-101775; Classification of the M&J PreShred 6000S
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 4601-2018-101775, which was filed on December 4, 2018 on behalf of eFACTOR3 (“eFACTOR3” or “protestant”). The protest pertains to the classification of the M&J PreShred 6000S under the Harmonized Tariff Schedule of the United States (“HTSUS”).
The subject merchandise was entered by protestant on April 30, 2018. On October 12, 2018, CBP at the Port of New York/Newark 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 December 4, 2018, 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 and a meeting which took place on November 13, 2019.
FACTS:
The M&J PreShred 6000S is a stationary preshredder manufactured by Metso Denmark. The M&J PreShred 6000S is capable of processing a variety of materials including household and industrial waste, steel, reinforced concrete and rocks. The M&J PreShred 6000S is used in facilities such as plastic recycling and incineration plants, hazardous waste processing facilities, transfer stations and landfills.
The M&J PreShred 6000S features a funnel for accommodating waste and a cutting table at the bottom of the funnel. The cutting table is made up of a cutting area, rotating shafts with knives, fixed lower knives that are separated by openings, bearings, and a hydraulic motor. The materials are loaded into a funnel, which are dropped inside the cutting table. A product manual of the M&J PreShred 6000S, describes the cutting table as consisting of a “welded steel frame carrying one or two heavy knife shafts, which shred the waste.” The product manual also states that the cutting table receives the material and reduces it by tearing, shredding, or cutting, depending on the type of material. The M&J PreShred 6000S features 9, 12, 14 or 16 rotating knives and 18, 24, 28, or 32 counter knives. The rotating knives are 80 mm thick and made of steel.
The M&J PreShred 6000S is described by U.S. Patent No. 5,992,777. The M&J PreShred 6000S is stated to perform a “comminution process, where the material is subjected to as well cutting and tearing actions.” The patent further provides that the inclination of the cutting table and the angle of the teeth can be changed so that it creates an optimum placement during the comminution process. Moreover, the M&J PreShred 6000S will fail to function if material is packed too firmly in the funnel because the knives cannot overcome the resistance of the packed material. In that case, the M&J PreShred 6000S will redistribute the material so that the knives can penetrate the material before the comminution process continues.
The patent further notes that the knives, which have a cutting edge on the upper side, can be provided with a cutting edge at the lower side such that the materials can be cut when the teeth during rotation are passing the associated lower knives in an upwards going direction. The patent for the M&J PreShred 6000S also indicates that when a piece of material has been seized by the teeth of one of the rotating upper knives, the piece of material is forced down towards the two lower knives in the opening and is stressed to cutting by especially the lower knife abutting the upper knife. The patent further states that the material is “stressed to be deformed by bending and breaking or tearing since the piece of material freely spans the opening between the two knives.”
The M&J PreShred 6000S is noted to have “key advantages” which include an open cutting table, bi-directional shredding, asynchronous shredding, and automatic reversal if the knives encounter large or tough steel or cement objects. In addition, M&J PreShredders are advertised as having large knives which result in a larger shredding capacity and a pusher device is not required.
Marketing materials describe the M&J PreShred 6000S as a “pre-shredder,” which is “capable of shredding large volumes of any kind of waste.” According to the protestant, preshredding occurs as an initial step in waste processing and helps to improve the separation of materials into heavy, medium or light. The M&J PreShred 6000 is noted to shred large volumes of waste and is ideal for shredding bulky or very heavy material. Waste that has been processed by a preshredder may undergo additional shredding.
Protestant’s preshredders, including the M&J PreShred 6000S, is also advertised as capable of operating as a bale breaker/wire cutter. The following appears on the protestant’s website:
Metso M&J Shredders are ideally suited as bale breakers for the PET and HDPE bottles recycling process. Thanks to the unique cutting table design it is possible to load whole bales with wires attached. The equipment breaks the bales, deliberates the bottles without the risk of cutting them into small pieces. This ensures that the bales are well declumped allowing a continuous flow for the downstream equipment.
Meanwhile, the wires will be cut into smaller pieces and can be removed by magnets right after the bale breaking operation.
Technical Highlights: • Load bales WITH wires attached – No need to cut wires before loading • Deliberates bottles without the risk of cutting them into small pieces • Continuous flow of materials for better downstream processing • Manual labor and risk to workers reduced to a minimum
Applications: • PET, HDPE bottles, Recycling, AG-film recycling
ISSUE:
Whether the M&J PreShred 6000S is classified in subheading 8479.82.00, HTSUS, as a crushing or grinding 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(c) because the decision against which the protest was filed is alleged to involve matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts, but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.
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 2018 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
There is no dispute that the subject M&J PreShred 6000S meets the requirements of 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 M&J PreShred 6000S falls within the scope of subheading 8479.82, HTSUS. Accordingly, GRI 6 applies.
Protestant maintains that the M&J PreShred 6000S should be classified under subheading 8479.82.00, HTSUS, which provides for, inter alia, “[m]achines and mechanical appliances . . . having individual functions, not specified or included elsewhere . . . crushing, grinding, screening . . . machines.” In particular, the protestant argues that the function of the M&J PreShred 6000S is to shred, and that the terms “shredding” or “preshredding” are synonymous with “crushing” and “grinding.”
The terms “shredding,” “crushing,” and “grinding” are not defined in the HTSUS or in the ENs. 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 C.I.T. 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 C.C.P.A. 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 C.I.T. 549 (1985), aff'd, 786 F.2d 1144 (Fed. Cir. 1986). The Cambridge Dictionary defines “shred” as “to cut or tear something into small pieces,” the Oxford English Dictionary defines “shred” as a “strip of material, such as paper, cloth, or food, that has been torn, cut or scraped from something larger,” and Merriam-Webster’s Dictionary defines “shred” as “a long narrow strip cut or torn off” and “to cut off.” Moreover, the United States Court of Customs and Patent Appeals (“C.C.P.A.”), by relying on dictionary definitions, determined that the common meaning of the term “shred” included “[t]o tear, cut or separate into small irregular or jagged strips or pieces; reduce to long and narrow fragments, as fibrous material . . . “[t]o cut or tear into small pieces; also, to cut or tear pieces from.” See W.R. Grace & Co. v. United States, 19 C.C.P.A. 326, 329 (1932). Conversely, 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.”
Based on the foregoing, “shredding,” or “preshredding” are not synonymous with “crushing” and “grinding.” As stated by the C.C.P.A. and supported by dictionary definitions, shredding involves tearing and cutting into smaller pieces. Moreover, the dictionary definitions of “crush” contain the requirement that there be a deliberate application of pressure 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. There is a clear distinction between “shredding” or “preshredding” and “crushing” and “grinding.”
The M&J PreShred 6000S functions like a shredding, cutting, and tearing machine because the material placed in the machine is continuously cut by knives into smaller pieces. The M&J PreShred 6000S is comprised of a cutting table that includes a cutting table, fixed lower knives and upper knives. A product manual for the M&J PreShred 6000S states that the cutting table reduces material by tearing, shredding, or cutting. The product literature for the M&J PreShred 6000S describe it as a “pre-shredder,” and “capable of shredding large volumes of any kind of waste.” Moreover, the M&J PreShred 6000S is marketed for having an open cutting table, bi-directional shredding, and asynchronous shredding.
The protestant alleges that the M&J PreShred 6000S’s “shreds” by applying pressure using the serrations of the knives against the cutting table and that the blades of the knives do not hit the cutting table. However, M&J PreShred 6000S’s patent describes the machine as performing a process that involves cutting and tearing materials by the application of the knives. For example, the patent states that the M&J PreShred 6000S performs a comminution process where material is subject to cutting and tearing actions. The patent also notes that the knives of the M&J PreShred 6000S penetrate the material before the comminution process continues. Moreover, the patent for the M&J PreShred 6000S highlights that its knives have cutting edges which can cut material. Finally, the protestant markets the M&J PreShred 6000S as a bale breaker/wire cutter where the wires of the bales are cut into smaller pieces. Therefore, based on our review of the product descriptions, product literature, and the patent that describes the M&J PreShred 6000S, we find that the primary function of the M&J PreShred 6000S is to shred, cut or tear materials.
CBP has previously ruled that machines which perform a shredding, cutting or tearing function are not classified in subheading 8479.82. In New York Ruling Letter (“NY”) N248108, dated December 10, 2013, CBP classified a preshredder machine that was designed to cut and tear large objects into smaller and more uniform lengths in subheading 8479.89. The preshredder consisted of two counter-rotating rotors that were powered by hydraulic motors. CBP rejected the classification of the preshredder machine in subheading 8479.82, reasoning that it did not crush or grind objects, but rather cut or tore them into smaller pieces. Further, in NY G81561, dated September 14, 2000, a scrap preshredder 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 preshredder 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, HTSUS. As a result, CBP classified the scrap preshredder under subheading 8479.89, HTSUS. Similarly, the M&J PreShred 6000S’ primary function is to cut and tear materials into smaller pieces. The M&J PreShred 6000S does not crush or grind objects nor does it use a crushing or grinding mechanism. Instead, the M&J PreShred 6000S uses rotating knives and a hydraulic motor to cut materials into smaller sizes.
Protestant claims that the machines in NY 877661, dated September 15, 1992, NY E80272, dated May 6, 1999, NY 876815, dated August 13, 1992, and NY 800739, dated August 30, 1994 have functions similar to the M&J PreShred 6000S because they used pressure to crush and grind materials into smaller sizes. As a result, the protestant claims that these cited rulings are directly relevant and support the M&J PreShred 6000S’s classification in 8479.82, 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, 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, HTSUS. In NY 876815, the merchandise were described as lamp crushers that crushed bulbs in a crushing chamber using a manually or pneumatically operated crushing mechanism. Finally in NY 800739, CBP found that a shredder that used serrated or grooved rolls to grind waste pieces from a grinder into finer particles was classified in subheading 8479.82, HTSUS.
The rulings cited by protestant are distinguishable because the machines at issue in those cases were specifically provided for in subheading 8479.82, HTSUS. The M&J PreShred 6000S’s function is not to grind or to crush compared to the machines in NY 877661, NY E80272, NY 876815, or NY 800739. The protestant claims that the process implemented by the machines in NY 876815 is “identical to that of the M&J PreShred 6000S.” However, the lamp crusher machines in NY 876815 did not contain knives that cut material into smaller pieces. Instead, the lamp crusher machines consisted of a crushing mechanism, that was manually or pneumatically operated, water spray, air vents, and a removable bin. The bulbs were loaded into a crushing chamber and were crushed to one-fifth of their original volume. By contrast, the M&J PreShred 6000S uses knives to cut materials into smaller pieces. As a result, the rulings cited by the protestant are not applicable to the instant case and the M&J PreShred 6000S 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 M&J PreShred 6000S is classified in heading 8479, specifically subheading 8479.89.94 of the 2018, 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 2018 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,
Craig T. Clark, Director
Commercial and Trade Facilitation Division