CLA-2 OT:RR:CTF:TCM H255319 TNA
Mr. K. Turkia
Kaltek, Inc.
PO Box 88390
Atlanta, GA 30356
RE: Revocation of NY J89586, NY N064482, NY A89554; Classification of Landfill Compactors
Dear Mr. Kaltek:
This letter is in reference to New York Ruling Letter (“NY”) J89586, issued to you on October 28, 2003, concerning the tariff classification of landfill compactors from Finland. There, U.S. Customs and Border Protection (“CBP”) classified the landfill compactors in subheading 8479.89.98, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other.” We have reviewed NY J89586 and found it to be incorrect with respect to the classification of its merchandise. We have also reviewed NY N064482, dated July 8, 2009, and NY A89554, dated December 11, 1996, which classify substantially similar landfill compactors in subheading 8479.89.98, HTSUS. For the reasons that follow, we hereby modify NY J89586 and revoke NY N064482 and NY A89554.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to modify NY J89586 and revoke NY N064482 and NY A89554 was published on December 17, 2014, in Vol. 48, No. 50, of the Customs Bulletin. CBP received one comment in response to this notice, which is addressed in the ruling.
FACTS:
The subject merchandise consists of self-propelled machines designed to crush, compact, and spread trash, garbage, household waste, construction materials and other forms of compactible material in solid-waste landfills. Each compactor consists of a 232 to 540 horsepower engine within a large articulated frame mounted on two drums with a hydraulically operated landfill blade attached to the front and rear of the unit. They all contain an enclosed operator’s cab mounted over the machine’s compaction drums and wheels, and chopper blades. The blades are mounted differently on the front and rear wheels to maximize chopping and compaction in both forward and reverse. The operator of the compactor drives over the waste in order to crush and compact it. The blades chop the waste so that it uses as little space as possible in the landfill.
In NY J89586, NY N064482 and NY A89554, CBP the subject merchandise in 8479.89.98, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other.”
ISSUE:
Whether the subject landfill compactors are classified as self-propelled bulldozers, tamping machines or road rollers of heading 8429, HTSUS; as compacting machinery of heading 8430, HTSUS; machinery for public works, building or the like of subheading 8479.10.00, HTSUS; or as other machines and mechanical appliances of subheading 8479.89.98, HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. GRI 6 states, in pertinent part, that “the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.”
The HTSUS provisions under consideration are as follows:
8429 Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers:
8430 Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores; pile-drivers and pile-extractors; snowplows and snowblowers:
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8479.10.00 Machinery for public works, building or the like
Other machines and mechanical appliances:
8479.89 Other
8479.89.98 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 8429, HTSUS, states in pertinent part, that:
The heading covers a number of earth digging, excavating or compacting machines which are explicitly cited in the heading and which have in common the fact that they are all self-propelled.
The provisions of Explanatory Note to heading 84.30 relating to self-propelled and multi-function machines apply, mutatis mutandis, to the self-propelled machinery of this heading, which includes the following:…
(D) Tamping machines as used in road making, for packing rail-road ballast, etc. (but see paragraph (a) of the introduction to Explanatory Note to heading 84.30 regarding machines mounted on vehicles of Chapter 86).
(E) Self-propelled road rollers as used in road building or other public works (e.g., for levelling the ground or rolling the road surface).
These machines are fitted with heavy cast iron or steel cylinders of large diameter, smooth or studded with metal feet which press into the soil (“sheep’s-foot” rollers), or with wheels and heavy grade solid or pneumatic tyres.
The EN to heading 8430, HTSUS, states in pertinent part, the following:
This heading covers machinery, other than the self-propelled machines of heading 84.29 and agricultural, horticultural or forestry machinery (heading 84.32), for “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). It also includes pile-drivers, pile-extractors, snow-ploughs, and snow-blowers….
The heading includes:…
(IV) TAMPING OR COMPACTING MACHINES
This group includes:
Road rollers designed to be pushed or towed. This group includes
“sheep’s-foot” tamping rollers studded with metal feet which press into the soil, and tamping rollers made up of a series of lorry type wheels with heavy grade pneumatic tyres mounted on a common axle.
However, the heading excludes self-propelled road rollers, whether or not fitted with “sheep’s-feet” or with solid or pneumatic tyres (heading 84.29) and agricultural rollers (heading 84.32).
Tamping machines as used in road making, for packing rail-road ballast,
etc., not self-propelled. Tools for working in the hand, pneumatic, hydraulic or with self-contained motor, are, however, excluded (heading 84.67).
Machines, usually pneumatic, for compacting the sides of
embankments, etc.
The EN to heading 8479, HTSUS, states in pertinent part, that:
This heading is restricted to machinery having individual functions, which:
Is not excluded from this Chapter by the operation of any
Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any other
Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of this
Chapter since:
(i) No other heading covers it by reference to its method of functioning, description or type.
and (ii) No other heading covers it by reference to its use or to the
industry in which it is employed.
or (iii) It could fall equally well into two (or more) other such
headings (general purpose machines)….
(II) MACHINERY FOR CERTAIN INDUSTRIES
This group includes:
(A) Machinery for public works, building or the like, e.g.:
(1) Machines for spreading mortar or concrete (excluding mixers for preparing concrete or mortar - heading 84.74 or 87.05).
(2) Road making machines which vibrate the concrete to consolidate it and to camber the surface, sometimes also spreading the concrete.
However this heading does not include levellers of heading 84.29.
(3) Machines, whether or not self-propelled, for spraying gravel on road or similar surfaces and self-propelled machines for spreading and tamping bituminous road-surfacing materials. Gravel sprayers mounted on a motor vehicle chassis are excluded (heading 87.05).
(4) Machinery and mechanical appliances for smoothing, grooving, checkering, etc., fresh concrete, bitumen or other similar soft surfaces.
Heating apparatus for bitumen, etc., are excluded (heading 84.19).
(5) Small pedestrian directed motorised apparatus for the maintenance of roads (e.g., sweepers and white line painters).
Mechanical rotating brooms, which may be mounted with a dirt hopper and a sprinkler system on a wheeled chassis powered by a tractor of heading 87.01, are also classified in this heading as interchangeable equipment, even if they are presented with the tractor.
(6) Salt and sand spreaders for clearing snow, designed to be mounted on a lorry, consisting of a tank for storing sand and salt, equipped with a lump-breaking agitator, a system for crushing/grinding the lumps of salt, and a hydraulic projection system with spreading disk. The machines’ various functions are operated from the cab of the lorry, by remote control.
The subject merchandise consists of self-propelled machines that compact trash in a landfill. Heading 8429, HTSUS, provides for “Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers.” We acknowledge that the subject landfill compactors contain many of the same physical features as bulldozers and road rollers of heading 8429, HTSUS. They also use the same large wheel drums to compact layers of soil and waste as is used by roadrollers and bulldozers. However, the subject merchandise is not used for road-building. The machines of heading 8429, HTSUS, are characterized by their use in compacting earth for making roads. The subject machines, by contrast, compact trash in a landfill. Even their incidental soil compacting capabilities are for covering the trash they compact, not for building roads. As a result, the subject merchandise is not described by the terms of heading 8429, HTSUS, and we examine alternate headings.
In submitting your ruling request for NY J89586, you argued for classification in heading 8430, HTSUS, which provides for “other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores; pile-drivers and pile-extractors; snowplows and snowblowers.” However, as explained in NY J89586, heading 8430, HTSUS, encompasses machines for “attacking” the earth’s crust, an action that includes such actions as cutting and breaking down rock, earth, coal, etc. See EN 84.30; NY J89586. We also reasoned that heading 8430, HTSUS, encompasses machines for preparing or compacting the terrain, an operation that includes scraping, leveling, grading, tamping or rolling. See EN 84.30; NY J89586. See also HQ 966618, dated January 16, 2004.
In the present case, the subject landfill compactors compact trash so as to make the best use of the space in a landfill. This does not require the crushing of rock or earth; nor does it require the leveling, grading or tamping of these materials. Thus, the subject landfill compactors do not “attack” the Earth’s crust. As a result, they are fundamentally different from the machinery of heading 8430, HTSUS. Therefore, the subject merchandise does not meet the terms of heading 8430, HTSUS, and cannot be classified there.
The comment that CBP received in response to the proposed revocation noted that landfill compactors do in fact compact earth on landfill sites, and that, more generally, these landfill compactors compact the terrain of a landfill. The commenter argues that these landfill compactors compact the trash in a landfill and then covers the waste with a minimum of six inches before driving over the soil to compact it with the layers of refuse. Commenter argues that the addition and compaction of these six inches of soil on a daily basis is mandated by law and cites regulations promulgated by the U.S. Environmental Protection Agency (“EPA”), which require that each level in a landfill be covered by six inches of soil for reasons of pest and disease control. Because of this soil compaction function, the commenter concludes that the subject landfill compactors meet the definition of tamping and compacting machinery of heading 8430, HTSUS.
In response, while we do not dispute that the subject landfill compactors also compact soil in this manner, it is clear that this soil compaction is a function that is secondary to refuse compaction. These landfill compactors’ main function is refuse compaction, which is not described by the terms of heading 8430, HTSUS. Furthermore, although the soil compaction function may be built in to comply with the cited EPA regulations, other agencies’ regulations are not binding on CBP for purposes of tariff classification.
The commenter also cites Merriam-Webster to define the term “terrain” as that term appears in heading 8430, HTSUS, as: “1(a): a geographic area, (2): a piece of land: ground; b.: the physical features of a tract of land.” The commenter argues that based on any of these definitions, the subject landfill prepare or compact “the terrain” as contemplated by EN 84.30. In response, we note that heading 8340, HTSUS, provides for “Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores” (emphasis added). The fact that this heading specifically covers machines for working these elements is evident in Section IV of EN 84.30, which defines tamping or compacting machines as including those which tamp soil, are used in road making or for packing rail-road ballast, and machines that compact the sides of embankments. These are all machines that work the earth- i.e., soil. As discussed above, soil compaction is a secondary function of the subject landfill compactors. Interpreting the term “terrain” as broadly as the commenter advocates would impermissibly widen the scope of heading 8430, HTSUS.
Having excluded the subject merchandise from other headings in Chapter 84, HTSUS, we consider classification in heading 8479, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this Chapter.” In particular, subheading 8479.10.00, HTSUS, provides for “machinery for public works, building or the like.” The question of whether landfills are public works is an issue of first impression.
CBP has stated that public works consist of (1) projects, such as highways, dams, and bridges, which are (2) financed by public funds and (3) are for use by the general public. See NY H87937, dated February 21, 2002; HQ 956637, dated August 29, 1994. Merchandise has been classified in subheading 8479.10.00, HTSUS, only when it meets all three criteria. In NY 849386, February 22, 1990, for example, CBP classified refuse treatment equipment, used in municipal waste treatment plants, for resource recovery and compacting non-combustible refuse. There, CBP described the plants as “municipal” to stress that they were not for private commercial use, and classified the machinery at issue in subheading 8479.10.00, HTSUS, as being for public works. See also NY 898924 (classifying machinery designed to remove ice sheets which can form on road surfaces, bridges, city sidewalks or other public areas in subheading 8479.10.00, HTSUS); NY 875235, dated July 1, 1992 (classifying machinery designed to clean a paved surface such as a road, walkway, or airport runway of snow, slush, dirt, leaves, stones, etc., in subheading 8479.10, HTSUS).
In the present case, we note that many municipalities maintain landfills as part of their public duties. See, e.g., http://www.epa.gov/osw/nonhaz/municipal/landfill/section3 .pdf; http://www.brunswickme.org/departments/public-works/landfill/; http://en.wikipedia .org/wiki/Public_works. Furthermore, published statistics show that approximately 65 percent of landfills are publicly owned, while only 35 percent are privately owned. See, e.g., “Policy Study No. 267: Privatizing Landfills: Market Solutions for Solid-waste Disposal,” by Geoffrey F. Segal and Adrian T. Moore, http://research.policyarchive. org/6336.pdf (last accessed May 29, 2014). In addition, while privatization of landfills has been an increasing trend recently, discussions about it recognize that landfills have traditionally been the purview of state and local governments. These governments have used public funds for them and not restricted their use beyond the general public. See, e.g., “Policy Study No. 267: Privatizing Landfills: Market Solutions for Solid-waste Disposal”; Jim Johnson: “Slow, but steady: Parties more cautious about privatizing services.” Waste News, May 8, 2006; http://www.wastebusinessjournal.com/overview. htm. As a result, we find that landfills are public works. The landfills that are run by local governments are works of the same type as highways and dams. Furthermore, they are publicly funded and are open to the public. Thus, they meet the definition of “public works.” See NY H87937; HQ 956637; NY 849386.
In the present case, it is not in dispute that the subject compactors are used primarily with landfills. Because landfills are public works pursuant to the analysis above, the subject merchandise is machinery for public works. As a result, the subject merchandise is classified in subheading 8479.10.00, HTSUS. With respect to NY J89586 in particular, we note that we are modifying this ruling with respect to the classification of its landfill compactor, while affirming its reasoning with respect to heading 8430, HTSUS, as discussed above. We note that the comment that CBP received in response to the proposed revocation supported classification in subheading 8479.10.00, HTSUS, if heading 8430, HTSUS, was found to be inapplicable.
Lastly, we note that NY J89586, NY N064482, and NY A89554 classified the subject landfill compactors in subheading 8479.89.98, HTSUS. This is a basket subheading that provides for “Other machines and mechanical appliances: Other: Other.” Merchandise can only be classified in this subheading when it is not provided for elsewhere in the nomenclature. Pursuant to the analysis above, the subject merchandise is described by the terms of subheading 8479.10.00, HTSUS. As a result, it cannot be classified in subheading 8479.89.98, HTSUS.
HOLDING:
Under the authority of GRI 1, the subject landfill compactors are classified in heading 8479, HTSUS. They are specifically classified in subheading 8479.10.00, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Machinery for public works, building or the like.” The column one general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY J89586, dated October 28, 2003, is MODIFIED with respect to the classification of its merchandise.
NY N064482, dated July 8, 2009, and NY A89554, dated December 11, 1996, are REVOKED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division