CLA-2 CO:R:C:M 088944 MBR
District Director
U.S. Customs Service
909 First Ave., Rm 2039
Seattle, WA 98174
RE: Protest No. 3004-90-000002, dated 1/8/90; Adjustable Outboard
Motor Brackets; Other Lifting, Handling Machinery; Section XV
Legal Note 1.(f)
Dear Sir:
Protest No. 3004-90-000002, together with an application for
further review, was timely filed on January 8, 1990, by Spar Marine
Manufacturing, Inc., against your action in which certain
"Adjustable Outboard Motor Brackets" were classified under
subheading 8302.49.60, HTSUSA, whereas protestor claims
classification is proper under subheading 8428.90.00, HTSUSA.
FACTS:
The merchandise at issue is described by the importer as
"Adjustable Outboard Motor Brackets." They are used for mounting
and raising or lower an outboard motor on a sailboat or motorboat.
They are equipped with two double torsion springs that provide a
combined lifting force of 74 pounds (except model 1010 which has
no springs and is only rated for up to a 10 H.P. motor). These
outboard motor brackets are "adjustable" in that they are capable
of five positions whereby the motor is held at different heights
in relation to the water surface ("Improves forward thrust in rough
water").
ISSUE:
What is the classification of "Adjustable Outboard Motor
Brackets," under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA)? Are they properly classified under
subheading 8302.49.60, HTSUSA, or are they classified as the
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protestor claims, under subheading 8428.90.00, HTSUSA?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
The "Adjustable Outboard Motor Brackets" ("brackets") are used
both for mounting an outboard motor on a boat and for positioning
the motor. Therefore, the brackets are prima facie classifiable
under two subheadings, which are subheading 8428.90.00, HTSUSA, and
subheading 8302.49.60, HTSUSA. These subheadings describe:
8428 Other lifting, handling, loading or unloading machinery
(for example, elevators, escalators, conveyors,
teleferics):
8428.90.00 Other machinery
* * * * * * * * * * * * *
8302 Base metal mountings, fittings and similar articles
suitable for furniture, doors, staircases, windows,
blinds, coachwork, saddlery, trunks, chests, caskets or
the like;...:
8302.49.60 Other mountings, fittings and similar articles,
and parts thereof: Other: Other: Of iron or
steel, of aluminum or of zinc
Heading 8428, HTSUSA, provides for: "Other lifting, handling,
loading or unloading machinery (for example, elevators, escalators,
conveyors, teleferics)."
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) for heading 8428, HTSUSA, page 1197, state:
With the exception of the lifting and handling machinery
of headings 84.25 to 84.27, this heading covers a wide
range of machinery for the mechanical handling of
materials, goods, etc. (lifting, conveying, loading,
unloading, etc.). They remain here even if specialized
for a particular industry, for agriculture, metallurgy,
etc.... (Emphasis added).
The Explanatory Notes, although not dispositive, should be
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looked to for the proper interpretation of the HTSUSA. See 54 Fed.
Reg. 35128 (August 23, 1989).
Therefore, for merchandise to be properly classifiable in
heading 8428, HTSUSA, it must be considered machinery. Under the
TSUS, the courts extensively addressed the scope of the term
"machine." In Border Brokerage Company v. United States, C.D.
2046, (1958), the United States Customs Court, Second Division,
held as follows regarding a similar spring assisted mechanism:
The simple kind of mechanical action involved in the
release of the energy stored up in a spring, when in fact
nothing more is accomplished than that something held in
a downward position by a heavy weight is pulled erect,
prompts us to agree with defendant that a spring stake
bunk does not rise to the dignity of a machine.
Thus, the instant spring assisted brackets cannot be
considered "machinery" thereby precluding classification in heading
8428, HTSUSA.
HOLDING:
The Spar Marine Manufacturing, Inc., "Adjustable Outboard
Motor Brackets" at issue are properly classifiable within
subheading 8302.49.60, HTSUSA, which provides for: "[b]ase metal
mountings, fittings and similar articles suitable for furniture,
doors, staircases, windows, blinds, coachwork, saddlery, trunks,
chests, caskets or the like;...: [o]ther mountings, fittings and
similar articles, and parts thereof: [o]ther: [o]ther: [o]f iron
or steel, of aluminum or of zinc."
The protest should be denied in full. A copy of this decision
should be attached to the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division