CLA-2 CO:R:C:G 087849 JMH

Robert E. Burke, Esq.
Barnes, Richardson & Colburn
200 East Randolph Drive
Chicago, Illinois 60601

RE: Belts or belting used with harvesters; belts and belting made of textile material and coated with vulcanized rubber; conveyer or transmission belts or belting; parts of machines; Section XVI, Note 1(a); harvesters; parts of agricultural machinery classified in heading 8433; Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2; actual use; Customs Regulation 10.133

Dear Mr. Burke:

This is in response to your August 23, 1990 request for a classification ruling concerning belting to be used with potato and beet harvesters.

FACTS:

The articles in question are belting used with equipment designed for the harvesting of potatoes and beets. You state that the belting is made from rubber strips. The strips are manufactured in Holland by coating man-made fibers with a heavy layer of rubber. The strips are molded to exact specifications. Prior to importation, the strips are punched with predetermined holes and then rivets and rivet plates are attached. The belting is imported both cut to specific lengths and in 100m rolls. The strips and rolls will also be imported with only the pre- punched holes. After they are imported, if the belting is imported in rolls then the rolls are cut into strips. Then, whether cut into strips before or after importation, two or three of the strips will be joined together by the attachment of harvesting rods. The harvesting rods are then secured by capping the rivets.

Once completed, the joined strips are referred to as harvester traction belts. The strips are sold exclusively for use on harvesting equipment. When attached to the harvesting

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machines, the harvester traction belts are used to aid in picking up the vegetables being harvested. The belts also convey the vegetables through the machinery to the storage truck or bin.

ISSUE:

Issue 1: Whether the belting to be used with harvesting equipment is a part of harvesting machinery in heading 8433, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") or is belts or belting in heading 4010, HTSUSA.

Issue 2: Whether the belting to be used with harvesting equipment is eligible for duty free treatment under heading 9817.00.60, HTSUSA.

LAW AND ANALYSIS:

Issue 1: Whether the belting to be used with harvesting equipment is a part of harvesting machinery in heading 8433, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA") or is belts or belting in heading 4010, HTSUSA.

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1, HTSUSA, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes..." The headings in contention are headings 4010 and 8433, HTSUSA. These headings describe the following:

4010 Conveyor or transmission belts or belting, of vulcanized rubber...

* * * * * * * * * * * * *

8433 Harvesting and threshing machinery, including straw or fodder balers...parts thereof...

The relevant section and chapter notes include Chapter 40, Note 8, HTSUSA, and Section XVI, Note 1(a), HTSUSA. Chapter 40, Note 8 states the following:

Heading 4010 includes conveyor or transmission belts or belting of textile fabric impregnated, coated, covered or laminated with rubber or made from textile yarn or cord impregnated, coated, covered or sheathed with rubber...

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Section XVI, Note 1(a) excludes conveyor belts or belting of vulcanized rubber and classified in heading 4010 from classification within Section XVI.

The belting in question is textile fabric coated with rubber used to convey harvested vegetables from the field through the harvesting machinery. Heading 4010 covers both "belts" and "belting". The term "belts" usually refers to a finished or complete item, while the term "belting" generally refers to an article which requires further manufacture. The subject merchandise is entered, whether on rolls or cut to strips, in an unfinished state. However, a determination of whether the rolls and strips are "belts" or "belting" need not be made since heading 4010 provides for both "belts" and "belting". No distinction is made between the two within heading 4010 or Chapter 40, Note 8 of the tariff. The belts or belting in question is described by, and thus is classifiable under, heading 4010.

Since the belts or belting are classifiable under heading 4010, the belting is excluded from classification within Section XVI by Section XVI, Note 1(a). Heading 8433 is within Chapter 84 and Section XVI. Thus, the belts or belting are excluded from classification within heading 8433.

The subject belts or belting to be used with harvesting machines are made of textile material coated with vulcanized rubber and used as conveyer belts with harvesting machinery. Heading 4010 is an eo nomine provision for conveyer belts and belting. The appropriate classification for the belts or belting is subheading 4010.99.15, HTSUSA, as "Conveyor or transmission belts or belting, of vulcanized rubber...Other...Other...With textile components in which man-made fibers predominate by weight over any other single textile fiber..."

Your contention that the belts or belting are properly classified as a part of harvesting machinery under heading 8433 is based upon U.S. v. Flex Trak Equipment, LTD., 458 F.2d 148 (1972). In that case, decided under the prior Tariff Schedules of the United States ("TSUS"), belting which was cut to length and then punched with holes at predetermined locations so that the belting would fit specific vehicles was imported. Customs classified the belting under item 358.10, TSUS, as belting for machinery. The court determined that the belting was "more than" belting and was properly classified under item 692.25, TSUS, as parts of special motor vehicles. The two TSUS provisions state the following:

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358.10 Belting and belts, for machinery...Of vegetable fibers, or of such fibers and rubber or plastics...In part of rubber or plastics...

* * * * * * * * * * * * *

692.25 Motor vehicles (except motorcycles) for the transport of persons or articles...Motor vehicles specially constructed and equipped to perform special services or functions, such as, but not limited to, fire engines, mobile cranes, wreckers, concrete mixers, and mobile clinics...Chassis bodies (including cabs), and parts of the foregoing motor vehicles...Other...Other...

However, two key factors prevent the classification decision of U.S. v. Flex Trak Equipment, LTD., 458 F.2d 148, from determining the outcome of the present situation. These two factors are (1) the nomenclature of the new tariff, the HTSUSA, and (2) the interpretation of the HTSUSA as intended by Congress. When the nomenclature of a new tariff has changed along with the legal interpretation of the text, prior case law is not to be deemed dispositive. See Legislative History of the Trade and Competitiveness Act of 1988, House Conference Report No. 100-576, Public Law 100-418, pp. 1582-1583.

The first factor, the nomenclature of the HTSUSA, prevents the classification of U.S. v. Flex Trak Equipment, LTD. from controlling in this instance because the language of the HTSUSA provisions in question is substantially different from the language of the subject TSUS provisions. The court in Flex Trak Equipment, LTD. classified the belting which was cut to length with predetermined punched holes in item 692.25 as parts of motor vehicles, because a TSUS provision did not exist which more specifically described the use of the belting. However, the HTSUSA now incorporates heading 4010 which specifically describes the belting in question. The subject belts or belting are conveyor belts or belting. Thus, heading 4010 is an eo nomine provision. These differences in nomenclature between the tariffs indicate that the classification of the subject belting under the HTSUSA should not be bound by prior case law decided under the TSUS.

The second factor that prevents Flex Trak Equipment, LTD. from being decisive regarding the classification of the belts or belting is that a different legal interpretation of the HTSUSA provisions is required. The GRIs and the section and chapter notes of the HTSUSA establish that the belting in question is to be excluded from classification as a machine part under the -5-

HTSUSA. These legal notes, along with the GRIs, are the foundation of the HTSUSA system of classification which was adopted by Congress. To disregard the basis of the classification system is to disregard the intent of Congress.

Since the tariff provisions between the TSUS and the HTSUSA have changed and the interpretations of the tariffs are dissimilar, Flex Trak Equipment, LTD. is not dispositive of the classification in this instance. The GRIs, headings, and the section and chapter notes of the HTSUSA are determinative of the correct classification for the belting in question.

Issue 2: Whether the belting to be used with harvesting equipment is eligible for duty free treatment under heading 9817.00.60, HTSUSA.

The HTSUSA consists of 99 chapters. The first 97 chapters form the international portion of the tariff that is utilized by all countries which have adopted the tariff. Chapters 98 and 99 of the HTSUSA are United States chapters which have been added to the international portion by Congress. Any item that is imported into the United States will receive a classification from within the first 97 chapters. Chapters 98 and 99 provide an additional classification that grants special treatment to qualifying articles.

The classification of merchandise under the HTSUSA, as stated above, is governed by the GRIs. GRI 1 states in part that "classification shall be determined according to the terms of the headings and any relative section or chapter notes..." The subject conveyor belts or belting meet the terms of heading 4010 and are classified in subheading 4010.99.15. This is the classification from the international chapters of the tariff.

However, if an article is described by a provision of chapter 98 and all applicable requirements are met, then the chapter 98 provision and its duty rate prevail over the classification and tariff rate from the international portion of the tariff. See Chapter 98, U.S. Note 1. The chapter 98 provision would then be the ultimate classification for purposes of importation into the United States.

The Chapter 98 provision at issue in this instance is heading 9817.00.60. Heading 9817.00.60 grants duty free treatment to certain parts of machines used in agricultural pursuits. Before an article can be classified in subheading 9817.00.60 a three part test must be met: (1) the articles must not be among the long list of exclusions to heading 9817.00.60, HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S.

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Note 2, HTSUSA; (2) the terms of heading 9817.00.60 must be met in accordance with GRI 1; and (3) the merchandise must meet the actual use conditions required under Customs Regulation 10.133, 10 C.F.R. 133.

The conveyor belts or belting are classified under heading 4010. Heading 4010 is not among the list of exclusions found in Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. Therefore, the first part of the three part test is met.

The second requirement is that the terms of heading 9817.00.60 must be met, in accordance with GRI 1. Heading 9817.00.60 describes the following:

Parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436, whether or not such parts are principally used as parts of such articles and whether or not covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c)...

The first term of the heading to be met is "[p]arts". The belts or belting in question must be "parts" of the articles within the listed headings. A "part" is an article which is an integral, constituent, component of a larger entity, and without the article being joined to the larger entity the larger entity could not function. United States v. Willoughby Camera Stores, Inc., 21 CCPA 332, T.D. 46851 (1933), cert. denied, 292 U.S. 640, 54 S.Ct. 773, 78 L. Ed. 1492 (1933); United States v. The J.D. Richardson Company, 36 CCPA 15, C.A.D. 390 (1948), cert. denied, 336 U.S. 936, 69 S.Ct. 746, 93 L. Ed. 1095 (1949); United states v. John A. Steer Co., 46 CCPA 132, C.A.D. 715 (1959). An unfinished or incomplete part which as entered has the essential character of the finished or complete part is to be classified under the HTSUSA as if it were the finished or complete part. GRI 2(a), HTSUSA.

However, the principle has long been espoused that goods which remain material when entered are not classifiable as a particular article unfinished. The Harding Co. et al. v. United States, 23 Cust. Ct. 250 (1936) (rolls of brake lining held to be material because the identity of the brake lining was not fixed with certainty); American Import Co. v. United States, 26 CCPA 72, 75, T.D. 49612 (1938) (lengths of silk fishing leader gut classified as manufactures of silk rather than unfinished leaders); F.H. Paul & Stein Bros., Inc. v. United States, 44 Cust. Ct. 130, C.D. 2166 (1960) (rolls of aluminum foil without lines of demarcations held to be material not articles featuring an electrical element or device); Sandvik Steel, Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321 F. Supp. 1031 (1971) (shoe die knife steel in coils and cutting rules in lengths, -7-

without demarcations for cutting or bending, held to be material rather than unfinished knives or cutting blades.); Naftone, Inc. v. United States, 67 Cust. Ct. 340, C.D. 4294 (1971) (rolls of plastic film without demarcations for cutting despite having only one use held to be insulating material). These decisions turn on the clarity of the identity and the dedication of use of the imported articles.

Since goods which are material when entered are classified as material, these goods are not "parts." "Parts" are integral, constituent components of a larger entity and "material" lacks the essential character of an integral, constituent article. Where the identity of an imported article is not fixed with certainty it will be regarded as material and not as an unfinished article or a part. Lee Enterprises, Inc. v. United States, 84 Cust. Ct. 208 (C.D. 4860) (photopolymer plates dedicated to a specific use and advanced in processing held to be unfinished printing plates and not material.), citing Bendix Mouldings, Inc. v. United States, 73 Cust. Ct. 204, C.D. 4576, 388 F.Supp. 1193 (1974), Sandvik Steel, Inc. v. United States, 66 Cust. Ct. 12, C.D. 4161, 321 F. Supp. 1031.

A case on point is Sandvik Steel, Inc. v. United States, 75 Cust. Ct. 78, C.D. 4610 (1975). In this case, coils of "band steel" conveyor belting were imported. The coils were not precut or marked to indicate the ultimate length of the individual conveyor belts. The court held the coils to be material. The decision was based on the facts that the coils were not dedicated to the making of any particular conveyor belt. A coil does not fix with certainty the identity of the belts. However, the court stated that conveyor belts cut to length and ready for final jointing were parts and not material. See also Flex Trak Equipment, LTD. (belting cut in strips and punched determined to be parts.)

The subject articles are belting on 100m rolls and belting cut into strips. Both the rolled and cut belting are imported in unfinished condition. Both the rolls and the cut strips are punched with predetermined holes, and in the exact width required. The cut belting may also be riveted prior to entry. The belting in strips has the essential character of the finished belt. The cut belting not only has fewer operations left to be performed on it, but it is also the exact size of the finished product. The identity of the imported strips is fixed with certainty. The strips are not capable of other uses. They are clearly belts. As belts they are constituent, integral components of a larger entity. Thus, the belting in strips are unfinished belts and are parts within the terms of heading 9817.00.60.

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However, the belting in rolls does not have the essential character of a finished belt. No demarcations are present on the rolls to indicate where the rolls will be cut. As a roll, although it is intended for use with the harvester machinery, identity of an imported article is not fixed with certainty. The rolls could be capable of other uses. Thus, the rolls of belting are only material. As material, the belting is not a part, and therefore, does not meet the terms of heading 9817.00.60.

The subject belts cut in strips are "parts" within heading 9817.00.60. The belts cut in strips are to be used with harvesting machinery. Harvesters are classified under heading 8433, one of the four listed headings in heading 9817.00.60. You have stated that the belts are designed for principal, if not sole, use with the harvesters. However, this heading does not require any magnitude of use with the harvesters. Finally, that the belts are classified in a specific provision instead of a "parts" provision, in accord with additional U.S. rule of interpretation 1(c), does not prevent their meeting the terms of the heading. The harvester traction belts cut in strips are parts for use with articles of heading 8433, thus the terms of the heading and the second requirement are met.

The third requirement is that the importer must comply with the actual use conditions required under Customs Regulation 10.133. This regulation includes three conditions: (1) the use is intended at the time of importation, (2) the article is so used, and (3) proof of use is furnished within three years after the date the article is entered or withdrawn from warehouse for consumption.

The unfinished belts in strips are not excluded from classification within heading 9817.00.60 by Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. The unfinished belts cut in strips are "parts" to be used with harvesters which are classified under heading 8433, one of the listed headings of heading 9817.00.60. Therefore, the terms of heading 9817.00.60 are met. Providing the actual use certification requirement of Customs Regulation 10.138 is met, the conveyor belts and belting to be used with harvesters are eligible for duty free entry under heading 9817.00.60.

HOLDING:

The belts or belting for use with harvesters which are manufactured in Holland are specifically described in heading 4010. Belts or belting made of vulcanized rubber, although to be used as parts of a machine classified within Section XVI, is excluded from classification with that machine in accordance with Section XVI, Note (1)(a). The appropriate classification for the belts or belting is subheading 4010.99.15, HTSUSA, as "Conveyor -9-

or transmission belts or belting, of vulcanized rubber...Other... Other...With textile components in which man-made fibers predominate by weight over any other single textile fiber..."

The conveyor belts or belting to be used with harvesters must meet a three part test to be eligible for duty free treatment under heading 9817.00.60: (1) the articles must not be among the long list of exclusions to heading 9817.00.60, HTSUSA, under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA; (2) the terms of heading 9817.00.60 must be met in accordance with GRI 1; and (3) the merchandise must meet the actual use conditions required under Customs Regulation 10.133, 10 C.F.R. 133.

The unfinished conveyor belts or belting are classified under heading 4010 are not excluded from heading 9817.00.60 by Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. The unfinished belting imported in rolls does not have a fixed identity or dedication for use. The rolls of belting are material. As material the rolls are not "parts", and thus, do not meet the terms of heading 9817.00.60. However, the belting cut in strips has the essential character of finished belts. These unfinished belts are parts for use with articles that are classified in heading 8433, the harvesters. Therefore, the belts cut in strips meet the terms of heading 9817.00.60. Providing that the conveyor belts imported in strips and for use with harvesters meet the conditions for actual use certification under Customs Regulation 10.133, the belts or belting are entitled to duty free treatment upon entry under heading 9817.00.60.

Sincerely,

John Durant, Director
Commercial Rulings Division