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HQ 959008

JUNE 28, 1996

CLA-2 RR:TC:MM 959008 JAS


TARIFF NO.: 8430.50.50

Port Director of Customs
35 West Service Road
Champlain, NY 12919

RE: PRD 0712-95-101261; Soil Stabilizer, Asphalt Recycler; Wheeled Machine With Cutting Rotor for Breaking Up Soil and/or Asphalt and Adding Stabilizing Materials; Heading 8429, Self-Propelled Excavator; Other Excavating Machinery; Special Purpose Motor Vehicle, Heading 8705; Section XVI, Note 1(l)

Dear Port Director:

This is our decision on Protest 0712-95-101261, filed against your classification of soil stabilizing machinery, designated the RACO 250, manufactured in Germany. The entry under protest was liquidated on November 13, 1995, and this protest timely filed on December 15, 1995.


Submitted literature describes the RACO 250 soil stabilizer/ asphalt recycler as a diesel-powered, wheeled vehicle with rear-mounted cab. It measures 29 ft. 2 in. x 9 ft. 10 in. x 11 ft. 15 in. The vehicle has a 2-speed transmission with a maximum forward speed of 11.8 km/h. and hydrostatic brakes. It features a hydrostatic drive, electrically controlled rotor capable of up to 155 rpm. The rotor is positioned at the midpoint of an articulated frame and has a working width of 94.5 in., a working depth of 16.5 in., and features 54 spade teeth in its soil stabilization application and 140 point teeth in its asphalt recycling application. The RACO 250 functions in a rotating motion both to loosen soil and to pulverize asphalt. It is equipped with a hydraulically adjustable mixing chamber that permits adding lime or asphalt emulsion to stabilize the mix prior to compacting.

The RACO 250 was originally entered as a special purpose motor vehicle of heading 8705, Harmonized Tariff Schedule of the United States (HTSUS). The entry was liquidated, however, under a provision in heading 8430, HTSUS, as other excavating machinery. Protestant now maintains the RACO 250 is a self-propelled excavator of heading 8429, HTSUS.

The provisions under consideration are as follows:

8429 Self-propelled...excavators:

8429.59 Other:

8429.59.50 Other...2 (now 1.5) percent ad valorem

8430 Other...excavating...machinery, for earth, minerals or ores;...:

8430.50 Other machinery, self-propelled:

8430.50.50 Other...2 (now 1.5 percent) ad valorem

8705 Special purpose motor vehicles, other than those principally designed for the transport of persons or goods...:

8705.90.00 Other...3 (now 2.2) percent ad valorem


Whether the RACO 250 is excavating machinery of heading 8430.


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 - 3 -
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 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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Initially, if the RACO 250 is a special purpose motor vehicle of heading 8705, it cannot be classified either in heading 8429 or in heading 8430. See Section XVI, Note 1(l), HTSUS. In this regard, the ENs at p. 1430 state, in relevant part, that vehicles of heading 87.05 which comprise excavating machinery, among others, must form what is in fact an essentially complete motor vehicle chassis or lorry in that it has at least the following mechanical features: propelling engine, gear box and controls for gear-changing, and steering and braking facilities. The RACO 250 has these features. However, the ENs go on to exclude from heading 87.05 self-propelled wheeled machines in which the chassis and the working machine are specially designed for each other and form an integral mechanical unit (e.g., self-propelled motor graders). In such cases the machine is not simply mounted on a motor vehicle chassis, but is completely integrated with a chassis that cannot be used for other purposes. Our review of the technical literature indicates the RACO 250 is not an excavating machine mounted on a motor vehicle chassis but, in fact, the working machine (i.e., rotor) and chassis form an integral mechanical unit. Therefore, the RACO 250 is not a special purpose motor vehicle of heading 87.05.

Heading 8429 in part covers a number of machines eo nomine, by name, which have in common the fact that they are all self-propelled. The RACO 250 is designated a soil stabilizer/asphalt recycler. There is no indication that it is commonly bought and - 4 -
sold, or regarded commercially as an excavator. On the other hand, the ENs at pp. 1204 and 1205 list the following:


(D) Rippers, rooters and scarifiers fitted with cutting teeth which loosen the top soil, break up old road surfaces, etc., prior to re-laying.

These ENs appear to describe the RACO 250.


Under the authority of GRI 1, the RACO 250 soil stabilizer/asphalt recycler is provided for in heading 8430. It is classifiable in subheading 8430.50.50, HTSUS. Since the rate of duty under this provision is the same as the liquidated rate, this protest should be ALLOWED. 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 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.


John Durant, Director
Tariff Classification

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