United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0950721 - HQ 0950873 > HQ 0950836

Previous Ruling Next Ruling



HQ 950836

June 22, 1992

CLA-2 CO:R:C:M 950836 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8461.90.00

District Director
U.S. Customs Service
55 Erieview Plaza
Cleveland, OH 44114

RE: Protest No. 4101-91-100062; Strand Torch Cutting Machine; Machine Tool; Explanatory Note 84.61(7); Explanatory Note 84.68; Summary Records to Harmonized System; 8468.20.50; 8454.90.00

Dear Sir:

This is our decision on Application for Further Review of Protest No. 4101-91-100062, dated July 3, 1991, concerning your action in classifying and assessing duty on strand torch cutting machines under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise consists of strand torch cutting machines. This machine is used to cut steel slab and steel strand. According to counsel for the importer, approximately 95 percent of the machines are used on-line in continuous casting plants. The remaining machines are used in casting plants as off-line machinery.

Each torch cutting machine consists of one or more cutting torches connected to a torch carriage. In turn, the torch carriage is connected to a machine carriage, which covers the steel slab in a portal-like design and travels on a rail running parallel to the slab. The machine carriage is connected to a computer system which interfaces with the casting mill and the torch cutting machine. The computer is controlled by a central processing unit (CPU) contained in a control pulpit. A machine operator in the pulpit inputs the requisite information into the CPU. The CPU relays the information to the computer, which controls the carriage drive, torch drive, burners, and other functions of the cutting machine.

To cut the steel slab, the torch cutting machine utilizes a skid attached to a torch carriage beam. The skid is lowered onto the steel slab being cut, thus synchronizing the forward movement of the slab and the cutting machine. The actual cutting process involves a cutting burner and a cutting nozzle, which bring together oxygen and gas. The machine automatically ignites the oxygen and gas jets, thus producing the heat required to cut the steel.

ISSUE:

What is the proper classification of the strand torch cutting machine under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The merchandise was entered under subheading 8468.20.50, HTSUS, which provides for: "[m]achinery and apparatus for soldering, brazing or welding, whether or not capable of cutting, other than those of heading 8515; gas-operated surface tempering machines and appliances; parts thereof: [o]ther gas-operated machinery and apparatus: [o]ther." However, the merchandise was liquidated under subheading 8461.90.00, HTSUS, which provides for: [m]achine tools for planing, shaping, slotting, broaching, gear cutting, gear grinding or gear finishing, sawing, cutting- off and other machine tools working by removing metal, sintered metal carbides or cermets, not elsewhere specified or included:

Counsel for the importer argues that the subject merchandise cannot be classifiable under subheading 8461.90.00, HTSUS. Counsel has provided several definitions of machine tools and a copy of a diagram in the Summary Records to the Harmonized System, listing machine tools intended to be covered under the machine tool provisions of the HTSUS.

It is counsel's main contention that the subject strand torch cutting machine cannot be classifiable as a machine tool, because it is not listed in the Summary Records diagram for conventional machine tools, and because it does not come within the conventional understanding of a machine tool. Counsel cites several dictionary and trade publication definitions of metal cutting machine tools which contemplate a cutting tool touching the surface of a workpiece to remove metal in the form of chips.

We do not agree with counsel's arguments. It is our position that the machine tool diagram in the Summary Records to the Harmonized System is not an exhaustive list of all machine tools to be classifiable as machine tools under heading 8461, HTSUS. Nowhere is it said that a torch cutting machine, using oxygen and gas as its tool, is excluded from classification as a machine tool. We find that the machine tools provided for in the diagram are merely instructional examples as to what may be classifiable as a machine tool.

It is also our position that the provisions for machine tools in chapter 84, HTSUS, in general, and in heading 8461, HTSUS, in particular, are not limited to machine tools which utilize a solid cutting tool. We note that heading 8456, HTSUS, provides for a number of machine tools, including laser, ultrasonic, and electro-discharge, none of which use a tool which comes in contact with the workpiece.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 84.61(7) (p.1277-1278) states:

(7) Cutting-off machines. These machine-tools differ from sawing machines by virtue of the tools they use. The latter can be either cutting tools analogous to lathe tools, or abrasive or metal discs. . . .

. . . . cutting-off machines, with metal discs, also known as friction sawing machines, are characterised by the fact that they operate by means of a mild steel disc with a toothless periphery. This disc, which may be fluted, is rotated in such a way as to give it a peripheral speed such that if the periphery of the disc is gradually brought in close proximity to a piece of metal, the latter immediately melts without having close contact with the disc. This phenomenon is the result of friction combined with the oxidising action of the air trapped between the disc and the metal to be cut.

The above description is an example of a machine tool which operates by cutting with friction heat, without the metal disc touching the surface base. Inasmuch as the listing in Explanatory Note 84.61, HTSUS, is not exhaustive, it is not unreasonable to conclude that this heading also includes gas cutting machines.

For these reasons, it is our position that the subject strand torch cutting machine is included within subheading 8461.90.00, HTSUS.

Counsel claims that the merchandise is classifiable under subheading 8468.20.50, HTSUS. We disagree. Heading 8468, HTSUS, provides for machinery or apparatus for soldering, brazing, or welding, and gas-operated surface tempering machines and appliances. The subject merchandise does none of these listed operations. GRI 1 is not satisfied because the strand torch cutting machine does not satisfy the terms of the heading.

Furthermore, in part, Explanatory Note 84.68 (p.1290), HTSUS, states that:

[t]he heading covers:

(A) Soldering, brazing or welding machinery and apparatus, whether or not capable of cutting, gas-operated or using processes other than those referred to in the text of heading 85.15. Machines designed exclusively for cutting are classified in their own appropriate headings.

(B) Gas-operated surface tempering machines and appliances.

It is clear that the strand torch cutting machine is not classifiable under heading 8468, HTSUS, because it is a machine designed exclusively for cutting and as directed by the Explanatory Notes is classifiable in its own appropriate heading. Also, it is not a gas-operated surface tempering machine or appliance.

As an alternative, counsel claims that the merchandise is classifiable under subheading 8454.90.00, HTSUS, as parts converters, ladles, ingot molds and casting machines, of a kind used in metallurgy or in metal foundries.

Section XVI, note 2(a), HTSUS, states that:

[p]arts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8485 and 8548) are in all cases to be classified in their respective headings.

Because the strand torch cutting machine is included in heading 8461, HTSUS, the merchandise cannot be classifiable as a part of a casting machine by reason of section XVI, note 2(a), HTSUS.

Counsel claims that heading 8461, HTSUS, is a "basket" provision and is not specific in providing for the subject merchandise. Additional U.S. Rule of Interpretation 1(c) is cited. It states that:
a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory.

We disagree with counsel's argument. Heading 8461, HTSUS, provides for "[m]achine tools for . . . . cutting-off and other machine tools working by removing metal, . . . . not specified elsewhere in this chapter." We find that heading 8461, HTSUS, is a specific provision for the purposes of Rule 1(c). Furthermore, counsel's argument is irrelevant, because even if the cutting machine is a part, a conclusion of which we do not concede, we have found that heading 8461, HTSUS, includes gas cutting machines. Therefore, by reason of section XVI, note 2(a), HTSUS, heading 8461, HTSUS, will prevail over the parts provision.

Counsel cites HQ 089935, dated November 6, 1991, which dealt with the issue of whether a thin strip casting machine, imported in one ship disassembled, is a composite machine for classification purposes. Counsel states that "[i]n HQ 089935, . . . . Customs acknowledges that a cutting machine is part of a continuous casting machine and is properly classified under Heading 8454."

We disagree with counsel's interpretation of the holding in HQ 089935. Nowhere in the ruling is there a discussion as to whether a cutting machine is part of a casting machine. To the contrary, the only issue discussed in the ruling is whether the goods included in the one shipment constituted a composite casting machine.

HOLDING:

The strand torch cutting machine is classifiable under subheading 8461.90.00, HTSUS, which provides for: "[m]achine tools for planing, shaping, slotting, broaching, gear cutting, gear grinding or gear finishing, sawing, cutting-off and other machine tools working by removing metal, sintered metal carbides or cermets, not elsewhere specified or included: [o]ther."

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

Previous Ruling Next Ruling

See also: