[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