HQ 950218

April 17, 1992

CLA-2 CO:R:C:M 950218 LTO

CATEGORY: Classification

TARIFF NO.: 8479.89.90

District Director

U.S. Customs Service

40 South Gay Street

Baltimore, Maryland 21202

RE: Protest No. 1303-91-100246; Hydraulic Mine Roof Shield

Supports; 8430; 8431; EN 84.30; XTC Products, Inc. v. U.S.; U.S.

v\. Citroen; Daisy-Heddon, Div. Victor Comptometer Corp. v. U.S.;

GRI 2(a); Section XVI, Note 4; HQ 084855; HQ 085145; HQ 087077;

C.I.E. 227-67; NY 802700; NY 803104; Item 664.05, TSUS; Item

664.08, TSUS; H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863

\(1988\)

Dear Sir:

This protest concerns the tariff classification of hydraulic

mine roof shield supports under the Harmonized Tariff Schedule of

the United States (HTSUS).

FACTS:

The articles in question are hydraulically operated mine

roof shield supports \[hereinafter \"shield supports\"\]. The shield

supports, along with a shearer and a face conveyor, form a

longwall mining system. In this system, the shield supports are

installed side by side along the face of an underground coal seam

to form a continuous overhead canopy which cantilevers over the

shearer and the face conveyor. The shield supports prevent the

mine roof from collapsing onto these machines as the coal is

removed.

The coal shearer, which is self-propelled and moves

laterally across the coal seam face, shears off coal in 20 to 30

inch wide strips and pushes the chunks of coal onto the face

conveyor. The face conveyor moves that coal away from the face

of the coal seam and onto a belt conveyor, which is not a machine

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of the longwall mining system. The stage loader, which is a part

of the conveyor system, takes the coal from the belt conveyor.

The loader has a \"crusher\" to break any pieces of coal that are

too large.

While the coal is being removed from the mining area,

hydraulic cylinders located at the base of the shield support

push sections of the face conveyor into the resulting gap in

preparation for the next shearing pass. Hydraulic cylinders in

the shield support which support the caving shield are then

retracted a few inches, the bases sequentially advanced toward

the coal face, and the shield supports re-extended so that they

again support the mine roof.

The shield supports are self-propelled, and they move the

system forward. Approximately 100-160 shield supports are used

in a single longwall mining system. The three machines of a

longwall mining system are interdependent on each other. No two

could function without the third. Thus, while the shield

supports are self-propelled, they cannot operate by themselves.

In HQ 084855, dated September 13, 1989, self-advancing

hydraulic mine roof shield supports were classified under

subheading 8479.89.90, HTSUS, which provides for \"\[m\]achines and

mechanical appliances having individual functions, not specified

or included elsewhere in this chapter . . . \[o\]ther machines and

mechanical appliances . . . \[o\]ther . . . \[o\]ther.\" The

articles in question were liquidated under this same subheading.

The protestant contends that the shield supports are classifiable

under Heading 8430, HTSUS, which describes other excavating or

extracting machinery. In the alternative, the protestant

contends that the shield supports are covered by Heading 8431,

HTSUS, which describes parts suitable for use solely or

principally with the extracting or excavating machinery of

Heading 8430, HTSUS.

ISSUE:

Whether the shield supports are classifiable as other

excavating machinery under Heading 8430, HTSUS, as parts thereof

under Heading 8431, HTSUS, or as machines not specified or

included elsewhere under Heading 8479, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI\'s) to the HTSUS

govern the classification of goods in the tariff schedule. GRI 1

states in pertinent part that \"for legal purposes, classification

shall be determined according to the terms of the headings and

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any relative section or chapter notes . . . .\"

The headings at issue are as follows:

8430 Other moving, grading, leveling,

scraping, excavating, tamping,

compacting, extracting or boring

machinery, for earth, minerals or

ores . . .

\* \* \* \* \* \* \* \* \* \* \* \* \*

8431 Parts suitable for use solely or

principally with the machinery of

headings 8425 to 8430

\* \* \* \* \* \* \* \* \* \* \* \* \*

8479 Machines and mechanical appliances

having individual functions, not

specified or included elsewhere in

this chapter

A complete longwall mining system consists of the following

three pieces of machinery: (1) a shearing machine; (2) a face

conveyor; and (3) shield supports. After the shearing machinery

slices off the coal, the face conveyor moves that coal away from

the face of the coal seam. The shearing machinery, or plow, is

self-propelled and it moves laterally across the face of the

coal. The shield supports are also self-propelled, and they move

the system longitudinally forward.

Section XVI, Note 4 states that \"\[w\]here a machine

(including a combination of machines) consists of individual

components . . . intended to contribute together to a clearly

defined function covered by one of the headings in chapter 84 or

chapter 85, then the whole falls to be classified in the heading

appropriate to that function.\" The shearing machinery, face

conveyor, and the shield supports, which form a longwall mining

system, contribute together to perform a function defined under

Heading 8430, HTSUS. The three machines are interdependent on

each other. No two could function without the third. As such,

if this entire system were imported together, it would be

classifiable as extracting machinery under this heading, not

because all three machines extract, but because the three

constitute a \"functional unit.\"

This conclusion, however, does not mean that one of the

three machines must necessarily be classified under Heading 8430,

HTSUS, or as a part of the system. Recently, the U.S. Court of

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International Trade reiterated that \"\[i\]t is well established

that an imported article is to be classified according to its

condition as imported . . . .\" XTC Products, Inc. v. United

States, 771 F.Supp. 401, 405 (1991). See also, United States v.

Citroen, 223 U.S. 407 (1911). Your office determined that, as

imported, the shield supports are not classifiable under Heading

8430, HTSUS, as \"\[o\]ther moving, grading, leveling, scraping,

excavating, tamping, compacting, extracting or boring machinery

. . . .\"

The protestant contends that the shield supports are

classifiable under Heading 8430, HTSUS, according to GRI 2(a).

GRI 2(a) states that:

Any reference in a heading to an article shall be

taken to include a reference to that article

incomplete or unfinished, provided that, as entered,

the incomplete or unfinished article has the

essential character of the complete or finished

article.

In Daisy-Heddon, Div. Victor Comptometer Corp. v. United States,

600 F.2d 799 (1979), the U.S. Court of Customs and Patent Appeals

set the guidelines to be followed in determining the

classification of unfinished articles. The protestant asserts

that the shield supports, based on the Daisy-Heddon guidelines,

are classifiable as unfinished coal cutting or excavating

machinery. However, as imported, the shield supports are not an

unfinished article\--they are complete machines in and of

themselves. It is inappropriate to apply Daisy-Heddon to a

complete machine that will be incorporated into a system in the

U.S. after importation. Similarly, it is inappropriate to

perform an \"essential character\" analysis in this instance. By

way of example, if the face conveyor\--a machine in a longwall

mining system\--was imported into the U.S. by itself, it would not

be classified as an unfinished article, even if the Daisy-Heddon

or \"essential character\" criteria were satisfied, because the

conveyor is specifically provided for under Heading 8428, HTSUS

\[other loading or unloading machinery\]. This reasoning should

not change simply because the article in question is not

specially provided or included elsewhere.

The protestant also contends that since the shield supports

are the propelling base for the complete system, they should be

classified pursuant to Explanatory Note 84.30, as incomplete

self-propelled coal cutting or extracting machinery under Heading

8430, HTSUS. EN 84.30, pg. 1203, states that Heading 8430,

HTSUS, \"covers self-propelled machines in which the propelling

base, the operating controls, the working tools and their

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actuating equipment are specially designed for fitting together

to form an integral mechanical unit.\" For example, EN 84.30, pg.

1203, states that a propelling base resembling a tractor, but

specially designed, constructed or reinforced to form an integral

part of a machine performing one or more of the functions listed

in Heading 8430, HTSUS, would be classified under this heading.

EN 84.30, pg. 1203-1204, further states that \"\[p\]resented

separately, such propelling bases also fall in this heading, as

incomplete machines having the essential features of complete

machines of the same kind.\"

It is our opinion that the shield supports are not the type

of propelling base contemplated by the Explanatory Notes. While

the EN\'s listing of a tractor-type base is only an example, it is

clear that the propelling base must in some way resemble a

tractor. For example, EN 84.30, pg. 1204, provides that \"\[f\]or

more detailed criteria for distinguishing between the tractors of

heading 87.01 and the propelling bases of this Chapter see

Explanatory Note 87.01.\" Heading 8701, HTSUS, provides for

\"\[t\]ractors (other than those of heading 8709).\" Thus, a

tractor-type propelling base was clearly the type contemplated by

the notes, and therefore, the note is inapplicable to the present

case.

Alternatively, the protestant argues that the shield

supports are covered by Heading 8431, HTSUS, which describes

parts suitable for use solely or principally with the extracting

or excavating machinery of Heading 8430, HTSUS. As stated above,

the three basic machines in a longwall mining system are

interdependent on each other. No two could function without the

third.

The protestant suggests that the shield supports, which are

used solely with the other machines of a longwall mining system

(which, according to Note 4 to Section XVI, is classifiable under

Heading 8430, HTSUS), should be classified as a part of such

system under Heading 8431, HTSUS. However, in discussing the

applicability of Note 4 to Section XVI, this office has concluded

that \"there are no Legal Notes or ENs that provide for

\'unfinished functional units.\'\" HQ 087077, dated March 27, 1991.

Similarly, there are no Legal Notes or ENs which provide for

\"parts of functional units.\" The fact that several machines, if

imported together, would be classified under a single heading as

a \"functional unit\" does not mean that the same should hold true

if they are imported separately. When imported separately, the

machines must be individually classified.

Moreover, it would be inappropriate, in this instance, to

classify the shield supports, which are complete machines by

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themselves, as \"parts\" of a system composed of more than one

machine. The shield supports are not a part of a particular

machine for extracting coal, but rather a part of a system, or

group, of machines which function together to perform longwall

mining operations. The shearing machinery, the face conveyor and

the shield supports are separate machines in and of themselves,

designed to work in conjunction with one another for a common

purpose, but each having an individual identity. Therefore, the

shield supports are not parts of an article (or a machine) of

Heading 8430, HTSUS, and thus cannot be classified under Heading

8431, HTSUS.

Finally, the protestant argues that there is a uniform and

established practice of classifying shield supports as mining

equipment under the TSUS, and that this practice carries over to

the HTSUS. In C.I.E. 227-67, dated February 28, 1967, it was

held that \"\[t\]here is a uniform and established practice of

classifying equipment similar to the mechanized roof supports and

the hydraulic roof supports, Mk III, under the provision for

extracting machinery, whether stationary or mobile, for minerals

or ores, in item 664.05, Tariff Schedules of the United States

(TSUS) . . . .\" That postion was later affirmed in NY 802700,

dated April 19, 1982, and in NY 803104, dated June 16, 1982

\[then, under item 664.08\]. Item 664.08, TSUS, provided for

\"mechanical shovels, coal-cutters, excavators, scrapers,

bulldozers and other excavating, levelling, boring and extracting

machinery . . . for earth, minerals or ores.\" The protestant

contends that Customs is required to continue this \"practice\"

under the Harmonized System.

The text of Heading 8430, HTSUS, is substantially similar to

this prior TSUS provision. However, the Harmonized Commodity

Description and Coding System Explanatory Notes were drafted

subsequent to the preparation of the Harmonized System

Nomenclature itself. The Conference Report on H.R. 3, the

Omnibus Trade and Competitiveness Act of 1988, part 3, explained

that the Explanatory Notes, while not legally binding, are

generally indicative of proper interpretation of the various

provisions of the Convention and that they should be consulted

for guidance. H.R. Rep. No. 134, 100th Cong., 2nd Sess., at 1863

(1988). As shown above, based on the Explanatory Notes and the

text of the heading, the articles in question cannot be

classified under Heading 8430, HTSUS.

Customs position with regard to the classification of self-

advancing hydraulic mine roof shield supports under the HTSUS was

clearly expressed in HQ 084855, dated September 13, 1989. In

that ruling, this office classified the shield supports under

subheading 8479.89.90, HTSUS, which describes other machines and

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mechanical appliances not specified or included elsewhere.

Therefore, according to HQ 084855, the shield supports are

classifiable under subheading 8479.89.90, HTSUS. The rulings

under the TSUS concerning the classification of shield supports

are not valid precedent under the HTSUS.

HOLDING:

The shield supports are classifiable under subheading

8479.89.90, HTSUS, which provides for \"\[m\]achines and mechanical

appliances having individual functions, not specified or included

elsewhere in this chapter . . . \[o\]ther machines and mechanical

appliances . . . \[o\]ther.\" The corresponding rate of duty for

articles of this subheading is 3.7% ad valorem.

The protest should be denied. A copy of this decision

should be attached to the Customs Form 19 and provided to the

protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

Commercial Rulings Division