Protest 0401-00-100088; Demolition Machines

HQ 965545 July 16, 2002 CLA-2 RR:CR:GC 965545 GOB CATEGORY: Classification TARIFF NO.: 8479.89.97 Port Director U.S. Customs Service 10 Causeway Street Boston, MA 02222-1059 RE: Protest 0401-00-100088; Demolition Machines Dear Port Director: This is our decision regarding Protest 0401-00-100088, filed on behalf of North American Sales (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain Brokk demolition machines. FACTS: The file reflects the following. The four entries at issue were filed between May 21, 1999 and September 8, 1999. Two of the entries were liquidated on December 17, 1999, and two were liquidated on January 14, 2000. The protest was filed on March 14, 2000. By letter of April 29, 2002, this office granted the protestant’s request to set aside your denial of its application for further review and the denial of the protest under the authority of 19 U.S.C. 1515(c). The merchandise at issue is Brokk remote-controlled demolition machines – model nos. BM 150, BM 250, BM 330, and BM 550. They were entered under subheading 8430.31.00, HTSUS. The entries were liquidated under subheading 8479.89.97, HTSUS. The BM 150 is electric driven, weighs 3,586 pounds and has a motor which can operate a 600 pound hydraulic hammer. It has 14 feet of reach and 360 degree rotation which permits operation in confined places. The BM 250 is electric driven, weighs 6,750 pounds and can handle a 1,000 pound hydraulic hammer. It has solid rubber tires, 20 feet of reach, and 360 degree rotation. It is used in many concrete breaking and process industry applications. The BM 330 is electric driven, weighs 9,030 pounds, and can handle a 1,250 pound hydraulic hammer. It has a 24 foot reach and 360 degree rotation. It is best suited for heavy concrete breaking, slag removal, and furnace demolition. ISSUE: What is the classification under the HTSUS of the subject demolition machines? LAW AND ANALYSIS: We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1). Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 GRI’s may then be applied. GRI 2 is not applicable here. GRI 3 provides in pertinent part that where goods are prima facie classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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. The HTSUS headings under consideration are as follows: 8429 Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers: 8430 Other moving, grading, levelling, scraping, excavating, tamping, compacting, extracting, or boring machinery, for earth, minerals or ores; pile-drivers and pile-extractors; snowplows and snowblowers: 8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: As indicated by GRI 3, above, if the goods are described in either heading 8429 or 8430, HTSUS, and also in heading 8479, HTSUS, the goods are classified in heading 8429 or 8430, HTSUS, as those headings are more specific. In NY B80056 dated December 24, 1996, Customs classified the Brokk MiniCut in subheading 8479.89.95, HTSUS. The ruling described the Brokk MiniCut as a demolition machine, i.e., a remote-controlled, self-propelled machine designed to perform light demolition work within buildings. The Brokk MiniCut is substantially smaller than the machines at issue here. While the Brokk MiniCut is not at issue in this protest, it appears to be similar in function to the Brokk machines which are at issue, i.e., product literature in the file clearly describes the Brokk machines as demolition machines. For example, the Brokk 150 is described as a “reliable demolition machine with capacity.” Brokk product literature describes specific demolition work performed by Brokk machines. In HQ 955395 dated February 14, 1994, Customs classified a scrap chopper (i.e., a rotary chopper which cut metal scrap into pieces of uniform length) in subheading 8479.89.90, HTSUS, which was a predecessor provision to the provision under which the goods were liquidated, subheading 8479.89.97, HTSUS. After a consideration of this matter, we conclude that the goods at issue are principally used as demolition machines. Any excavation which may be performed is in the nature of lifting and moving piles of demolished structures, as opposed to the excavation of earth or minerals. Demolition machines are not described in either heading 8429, HTSUS, or heading 8430, HTSUS. Accordingly, we find that the Brokk demolition machines are described in heading 8479, HTSUS, and are classified in subheading 8479.89.97, HTSUS (1999) as: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: . . . Other machines and mechanical appliances: . . . Other: . . . Other: . . . Other.” HOLDING: The Brokk machines (model nos. BM 150, BM 250, BM 330, and BM 550) are classified in subheading 8479.89.97, HTSUS (1999), as: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: . . . Other machines and mechanical appliances: . . . Other: . . . Other: . . .Other.” You are instructed to DENY the protest. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Acting Director Commercial Rulings Division