[Federal Register Volume 61, Number 236 (Friday, December 6, 1996)]
[Notices]
[Pages 64791-64792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31010]
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DEPARTMENT OF THE TREASURY
Customs Service
Tariff Classification of Hydraulic Mine Roof Shield Supports
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Proposed change of practice; solicitation of comments.
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SUMMARY: This notice advises the public that Customs proposes a change
of practice regarding the classification of hydraulic mine roof shield
supports under the Harmonized Tariff Schedule of the United States
(HTSUS). Customs has a uniform and established practice of classifying
shield supports under subheading 8430.50.50, HTSUS, which provides for
other self-propelled excavating machinery. Customs intends to change
this practice to reflect the proper classification of the shield
supports under subheading 8479.89.95, HTSUS, which provides for other
machines and mechanical appliances having individual functions, not
specified or included elsewhere in this chapter.
If this proposed change is adopted, those rulings which are
inconsistent with our current practice would be revoked. We believe
such action would affect only the classification of the hydraulic mine
roof shield supports. Before adopting this proposed change,
consideration will be given to any written comments timely submitted in
response to publication of this document.
DATES: Comments must be received on or before February 4, 1997.
ADDRESSES: Written comments (preferably in triplicate) may be addressed
to U.S. Customs Service, Office of Regulations and Rulings, 1301
Constitution Avenue, N.W., (Franklin Court), Washington, D.C. 20229.
Comments submitted may be inspected at the Office of Regulations and
Rulings, located at Franklin Court, 1099 14th Street, N.W., Suite 4000,
Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Larry Ordet, Tariff Classification
Appeals Division, (202) 482-7030.
SUPPLEMENTARY INFORMATION:
Background
Self-propelled, hydraulic mine roof shield supports are used in
underground coal mining. They are one of three machines of a long wall
mining system. The system consists of: (1) A cutting device (shearer)
which removes coal as it moves along the face of a coal deposit; (2) a
face conveyor, located underneath the cutting tool, which transports
the coal as it is removed; and (3) an advancing mechanism and shield
support which serve as a platform for (1) and (2). 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 face conveyor. The supports prevent the mine roof from collapsing
onto these machines as the coal is removed. The supports also move the
entire system forward. No single component can function as coal cutting
machinery without the other two components.
Customs position with regard to the classification of self-
advancing, hydraulic mine roof shield supports under the Tariff
Schedules of the United States (TSUS), the precursor to the HTSUS, was
expressed in C.I.E. 227-67, dated February 28, 1967. In C.I.E. 227-67,
we stated 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 or not stationary or mobile, for minerals or ores,
in item 664.05 * * *.'' Item 664.05, TSUS, provided for ``mechanical
shovels, coal-cutters, excavators, scrapers, bulldozers and other
excavating, levelling, boring and extracting machinery * * * for earth,
minerals or ores.'' This position was later followed in New York Ruling
Letter (NY) 802700, dated April 19, 1982, and NY 803104, dated June 16,
1982 (then, under item 664.08, TSUS).
Customs position with regard to the classification of shield
supports under the HTSUS was expressed in Headquarters Ruling Letter
(HQ) 084855, dated September 13, 1989. In HQ 084855, we held that the
shield supports were classifiable under subheading 8479.89.90 (now,
8479.89.95), HTSUS, which provides for other machines and mechanical
appliances having individual functions, not specified or included
elsewhere in this chapter. This decision was later affirmed, in HQ
950218 and HQ 950220, both dated April 17, 1992.
However, in Hemscheidt Corporation v. United States, 858 F.Supp.
223 (CIT 1994), the U.S. Court of International Trade determined that
the uniform and established practice of classifying the shield supports
as ``extracting'' machinery, established under the TSUS, survived
implementation of the HTSUS. The Court pointed out that Customs did not
publish notice in the Federal Register, in accordance with 19 U.S.C.
1315(d), of its intention to classify shield supports under heading
8479, HTSUS. Accordingly, the Court held that the shield supports were
properly classifiable under subheading 8430.50.50, HTSUS, which
provides for other self-propelled excavating or extracting machinery.
This decision was affirmed in Hemscheidt Corporation v. United States,
72 F.3d 868 (Fed. Cir. 1995).
It is Customs position that the shield supports cannot be
classified as excavating or extracting machinery under heading 8430,
HTSUS. The terms ``excavate'' and ``extract'' are not defined in the
HTSUS. When terms are not so defined, they are construed in accordance
with their common and commercial meaning. Nippon Kogasku (USA), Inc. v.
United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial
meaning may be determined by consulting dictionaries, lexicons,
scientific authorities and other reliable sources. C.J. Tower & Sons v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).
``Excavate'' is defined in Webster's Ninth New Collegiate
Dictionary, pg. 431 (1990), as follows: ``1: to form a cavity or hole
in 2: to form by hollowing 3: to dig out and remove 4: to expose to
view by or as if by digging away a covering.'' ``Extract'' is defined,
pg. 440, as follows: ``1 a: to draw forth * * * b: to pull or take out
forcibly * * * c: to obtain by much effort from someone unwilling * * *
2: to withdraw (as a juice or fraction) by physical or chemical
process.* * *.''
As coal is removed, the self-propelled shield supports prevent the
mine roof from collapsing onto the system's shearer and face conveyor.
The supports also move the entire system forward. They do not, however,
form a cavity or hole, dig out or remove, nor pull, take out, or
withdraw, any material. While the supports form a portion of a system
designed to excavate coal, the shield supports cannot, by themselves,
be considered ``excavating'' or ``extracting'' machinery.
This determination is supported by Harmonized Commodity Description
and Coding System Explanatory Note (EN) 84.30, pg. 1203, which states,
in pertinent part, that heading 8430, HTSUS, covers machinery ``for
[[Page 64792]]
`attacking' the earth's crust (e.g., for cutting and breaking down
rock, earth, coal, etc.; earth excavation, digging, drilling, etc.), or
for preparing or compacting the terrain (e.g., scraping, levelling,
grading, tamping or rolling).'' The shield supports do not ``attack''
the earth's crust, nor do they prepare or compact the terrain.
Accordingly, based on the common meaning of the terms ``excavating''
and ``extracting,'' and the guidance of EN 84.30, the shield supports
cannot be classified under heading 8430, HTSUS.
Proposed Change of Practice
Customs believes that the shield supports are classifiable under
heading 8479, HTSUS, which provides for machines and mechanical
appliances having individual functions, not specified or included
elsewhere in the chapter. The function performed by the shield supports
is not described by any heading in the tariff schedule.
The shield supports prevent the mine roof from collapsing onto the
system's shearer and face conveyor. This function is distinct and
separable from that which is performed by the other components of the
long wall mining system, which is designed to cut and then transport
coal. While the supports also move the entire system forward, they do
not perform a cutting or (coal) transportation function. See EN 84.79
(for examples of devices having ``individual functions''). Accordingly,
the shield supports are classifiable under heading 8479, HTSUS,
specifically under subheading 8479.89.95, HTSUS.
Authority
This notice is published in accordance with section 177.10, Customs
Regulations (19 CFR 177.10).
Comments
Before adopting this proposed change in practice, consideration
will be given to any written comments timely submitted to Customs.
Comments submitted will be available for public inspection in
accordance with the Freedom of Information Act (5 U.S.C. 552), section
1.4, Treasury Department Regulations (31 CFR 1.4) and section
103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular business
days between the hours of 9:00 a.m. and 4:30 p.m. at the Office of
Regulations and Rulings, Franklin Court, 1099 14th Street, N.W., Suite
4000, Washington, D.C.
Approved: November 7, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
George J. Weise,
Commissioner of Customs.
[FR Doc. 96-31010 Filed 12-5-96; 8:45 am]
BILLING CODE 4820-02-P
