HQ 955700

DECEMBER 8, 1994

CLA-2:CO:R:C:M 955700 JAS

CATEGORY: Classification

TARIFF NO.: 8428.39.00, 8428.90.00

District Director of Customs

423 Canal Street, Rm. 245

New Orleans, LA. 70130

RE: PRD 2002-93-101453; Parts of Casting Machines, Subheading

8454.90.00; Slip Op. 93-161; Motors, Heading 8412, Sprayers,

Heading 8424, Conveyors, Other Handling Machinery, Heading

8428, Gear Boxes, Speed Changers, Heading 8483, Section XVI,

Note 2(a) and General Explanatory Note; HQ 952019,

HQ 952743, HQ 954942

Dear District Director:

This is our decision on Protest No. 2002-93-101453, filed

against your action in classifying machines, components and

apparatus from Japan used in a continuous steel caster. The

merchandise was imported in multiple shipments and the entries

were liquidated on June 4 and July 2, 1993. This protest was

timely filed on August 31, 1993.

FACTS:

The approximately one hundred thirteen (113) articles under

protest were entered under the duty-free provision in heading

8454 for parts of casting machines. The import specialist noted

that most of these components were provided for in provisions

believed to be more specific than the entered provision, and

liquidated the entries accordingly. For example, various storage

racks, stands and platforms were reclassified as articles of iron

or steel under heading 7326; drive motors were reclassified under

heading 8412; machinery for weighing both the molten metal and

the cast product under heading 8423; piping for sprayers as parts

under heading 8424; ladle turret, tundish transfer car, lifting

beams and roller tables as conveyors and other material handling

devices under heading 8428, and related rollers and roll

assemblies as parts, under heading 8431; drive units, gear

couplings and reducers under heading 8483; deburring tables as

machine tools under heading 8460; molds and mold covers as molds

for metal under heading 8480; various hand tools as wrenches

under heading 8204; signs and name plates under heading 8310; and

quality control apparatus as measuring and checking instruments

in heading 9031.

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The provisions under consideration include but are not

limited to the following:

7326 Other articles of iron or steel:

7326.90 Other:

Other:

7326.90.90 Other\...5.7 percent

\* \* \* \*

8412 Other engines and motors:

Hydraulic power engines and motors:

8412.21.00 Linear acting (cylinders)

\...3.4 percent

\* \* \* \*

8424 Mechanical appliances for spraying liquids

or powders; parts thereof:

8424.90 Parts:

8424.90.90 Other\...3.7 percent

\* \* \* \*

8428 Other lifting, handling, loading or

unloading machinery:

8428.39.00 Other conveyors\...2 percent

8428.90.00 Other machinery\...2 percent

\* \* \* \*

8431 Parts suitable for use solely or principally

with the machinery of heading \[8428\]:

8431.39.00 Other\...2 percent

\* \* \* \*

8454 Casting machines and parts thereof:

8454.90.0 Parts\...Free

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\* \* \* \*

8480 Molding boxes for metal foundry; mold

bases: molds for metal (other than ingot

molds), metal carbides glass, etc.:

Molds for metal or metal carbides:

8480.49.00 Other types\...3.9 percent

\* \* \* \*

8483 Gear boxes and other speed changers:

8483.40.50 Other\...2.5 percent

\* \* \* \*

9031 Measuring and checking instruments, appliances

and machines:

9031.80.00 Other instruments, appliances and

machines\...4.9 percent

ISSUE:

Whether the machines, components and apparatus are goods

included in headings of chapters 84 and 85; whether they are

provided for as parts of casting machines in heading 8454.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRIs). GRI 1 states in part

that for legal purposes, classification shall be determined

according to the terms of the headings and any relative section

or chapter notes, and provided the headings or notes do not

require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System

Explanatory Notes (ENs) constitute the Customs Cooperation

Council\'s official interpretation of the Harmonized system.

While not legally binding on the contracting parties, and

therefore not dispositive, the ENs provide a commentary on the

scope of each heading of the Harmonized System and are thus

useful in ascertaining the classification of merchandise under

the System. Customs believes the notes should always be

consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23,

1989).

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Counsel for protestant maintains that these components are

classified as parts of casting machines, in subheading

8454.90.00, HTSUS, for two reasons. First, he argues that

because these components are uniquely designed for use in a

specific continuous caster, they meet the sole or principal use

test for parts in Additional U.S. Rule 1(c), HTSUS. Second,

based on a 1993 court decision on substantially similar

merchandise under the HTSUS predecessor tariff code, the Tariff

Schedules of the United States (TSUS), counsel contends that the

provisions under which Customs classified the components in this

case are not \"specific\" for purposes of Rule 1(c).

It is important to note that the Additional U.S. Rules of

Interpretation apply in the absence of special language or

context which otherwise requires. In accordance with GRI 1, the

terms of the headings and any relative section or chapter notes

are the first and primary consideration in classifying

merchandise under the HTSUS. Accordingly, Customs has

consistently held that goods which are parts of machines or

apparatus of chapters 84 and 85 are to be classified in

accordance with Section XVI, Note 2, HTSUS. HQ 952019, dated

March 18, 1993, and related cases. This is special language or

context that precludes the application of Rule 1(c). Parts which

are goods included in any of the headings of chapters 84 or 85

are in all cases to be classified in their respective headings

(emphasis added). Note 2(a). Other parts suitable for use

solely or principally with a particular kind of machine, or with

a number of machines of the same heading, are to be classified

with the machines of that kind. Note 2(b). Therefore, as to

counsel\'s first argument, notwithstanding the machines and

components under protest may be principally used with casting

machines, they are to be classified in the heading(s) under which

they are included.

Counsel\'s second argument is based on the court\'s decision

in Mitsubishi International Corp. v. United States, 17 CIT ,

Slip Op. 93-161, decided August 12, 1993. In that case machines,

components and apparatus for casting machines, similar to the

ones in this protest, were held to be classified in item 674.10,

TSUS, as parts of casting machines. The court rejected item

664.10, TSUS, a provision for other lifting, handling, loading or

unloading machinery, as relied on by Customs for many of the

material handling devices, as not satisfying the specificity

requirement of General Rule of Interpretation 10(ij), TSUS. In

addition, the court rejected the remaining \"specific\" provisions

relied on by Customs because the machines and components were

said to possess significant additional features and, therefore,

were \"more than\" the goods encompassed by the terms of the

liquidated provisions. Judicial decisions under the TSUS are to

be considered instructive in interpreting the HTS only where the

nomenclature remains unchanged and no dissimilar interpretation

is required by the text of the HTS. While TSUS Rule 10(ij)

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states that a parts provision shall not prevail over a specific

provision, there is no such specificity requirement in Note 2(a),

which requires only that a part be a good \"included\" in a heading

of chapter 84 or 85. Therefore, because there has been a change

in the text of the HTSUS, Mitsubishi is not considered

instructive here.

As to the applicability of heading 8428, the relevant EN on

Note 2, at p. 1131, lists lifting and handling machinery (heading

84.25, 84.26 or 84.28) as articles that in all cases are to be

classified in their own appropriate heading even if specially

designed to work as part of a specific machine. Except for the

following, counsel has not sufficiently demonstrated that the

remaining machines and components possess a significant

additional function or functions sufficient to remove them from

\"inclusion\" in the provisions under which they were classified in

liquidation.

The weighing machinery classified eo nomine in subheading

8423.82.00 is in fact a roller conveyor to which the weighing

machine was added after importation. This article is to be

reclassified in subheading 8428.39.00. Under Note 2(b) the

tundish overflow troughs, storage racks, stands and platforms

classified in subheading 7326.90.90 are to be reclassified in

subheading 8454.90.00. The cooling fans liquidated under

subheading 7326.90.90 are to be reclassified eo nomine under

subheading 8414.59.60. The molds cannot be classified in

subheading 8480.49.00 as liquidated. HQ 952743, dated February

16, 1993. They are to reclassified in subheading 8454.90.00.

Reducers for the torch roller tables and the torch runout tables

are not gearboxes of subheading 8483.40.50; rather, because they

are only rollers with couplings attached they are classified in

subheading 8431.39.00.

HOLDING:

Under the authority of GRI 1, the tundish overflow troughs,

storage racks, stands and platforms and the molds are to be

reclassified under subheading 8454.90.00. The protest is ALLOWED

as to this merchandise. The roller conveyor, thought initially

to be weighing machinery, the cooling fans, and the reducers with

couplings for torch roller tables and torch runout tables are to

be reclassified as indicated. Because the rates under these

provisions are less than the liquidated rates but more than the

claimed rates the protest is ALLOWED IN PART as to this

merchandise based on the reclassifications. As to the remaining

merchandise the protest is DENIED.

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, you should mail this decision, together with the

Customs Form 19, to the protestant no later than 60 days from the

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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 Regulations and Rulings will take steps to make the

decision available to Customs personnel via the Customs Rulings

Module in ACS and to the public via the Diskette Subscription

Service, the Freedom of Information Act and other public access

channels.

Sincerely,

John Durant, Director

Commercial Rulings Division