H320060

HQ H320060 April 8, 2022 CLA-2 OT:RR:CTF:EMAIN H320060 PF CATEGORY: Classification TARIFF NOS.: 8431.20.00; 9903.88.01 Port Director Port of Norfolk U.S. Customs and Border Protection 101 E. Main Street Norfolk, VA 23510 Attn: Waiyin Lee, Import Specialist Re: Protest and Application for Further Review No: 1401-21-106089; Classification and applicability of Section 301 trade remedies of rubber tracks from China Dear Port Director: The following is our decision as to Protest and Application for Further Review No. 1401-21-106089, which was filed on July 12, 2021, on behalf of Wilson-Finley Company (“protestant” or “WFC”). The protest pertains the classification of rubber tracks and CBP’s determination on the applicability of the exclusion annotated under Chapter 99 U.S. Note 20(i)(17) under the Harmonized Tariff Schedule of the United States (“HTSUS”). Our decision is set forth below. The subject merchandise was entered by protestant on January 19, 2021. On June 11, 2021, CBP at the Port of Norfolk liquidated the entry under subheading 8431.20.0000, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). On July 12, 2021, protestant filed a protest and AFR alleging that the subject merchandise is properly classified under subheading 8431.49.9095, HTSUSA. WFC further protests the liquidation of the entry under subheading 9903.88.01, HTSUS, and the 25 percent duty assessment under the Section 301 Trade Remedy. WFC claims that the subject rubber tracks should be liquidated under subheading 9903.88.06, HTSUS, citing the exclusion annotated under Chapter 99 U.S. Note 20(i)(17) for “Vulcanized rubber tracks, each incorporating cords and cleats of steel, designed for use on construction equipment (described in statistical reporting number 8431.49.9095).” FACTS: The merchandise at issue in this protest are rubber tracks for compact track loaders. Compact track loaders have lifting, loading, pushing force, grading and excavating capabilities. In addition, compact track loaders are small compact machines with lift arms designed to work in compact areas. A wide variety of tools can be attached to these arms such as angle brooms, augers, backhoes, buckets, pallet forks, landscape rakes, trenchers, snowblades, and landplanes. Depending on the attachment used, a compact track loader can be used in pushing material from one location to another, carrying material in a bucket, or loading material into a truck or trailer. A compact track loader has the same lift-arm design as a skid steer loader, but uses a different undercarriage, and by extension, a different method of propulsion. The undercarriage of a compact track loader uses a track design instead of wheeled tires on a skid steer loader. Both a compact track loader and as skid steer loader are designed to be compact, easily maneuverable, versatile, and perform similar functions. The use of rubber tracks allows a compact track loader to drive over more challenging types of terrain, but its bucket attachment performs the same function as a skid steer loader. The rubber tracks in the instant case are designed to fit most models of compact track loaders and are alleged to be composed of a synthetic and natural blend of vulcanized rubber on the outside and incorporate a metal core with steel cords on the interior. According to the protestant, the rubber tracks are fitted on compact track loaders made by companies such as Caterpillar and Bobcat. Moreover, the types of compact track loaders that use the rubber tracks include Caterpillar Compact Track Loaders 259D3, 279D3, 289D3, and Bobcat Compact Track Loader T450, T595, T62, and T64. The Caterpillar Compact Track Loader models 259D3 and 289D3 are described as having a “vertical lift design, [that] delivers extended reach and lift height for quick and easy truck loading.” The Caterpillar Compact Track Loader model 279D3 is described as having a “radial lift design, [that] delivers impressive mid-lift reach and excellent digger performance with outstanding drawbar power.” All three Caterpillar Compact Track Loaders, specifically models 259D3, 279D3, and 289D3 are described as having a “standard, suspended undercarriage system [that] provides superior traction, flotation, stability and speed to work in a wide range of applications and underfoot conditions.” The Bobcat Compact Track Loader model T450 is described as having a “radius lift path [that] excels at jobs with mid-range working heights such as dumping over walls, backfilling or unloading flatbed trucks.” Moreover, the Bobcat Compact Track Loader model T450 is noted to be “found on extremely confined congested jobsites. The M3-Series T450 compact track loader delivers the maneuverability your work requires with all the power you need to haul, lift, dig, and operate attachments – and quickly move across the worksite.” The Bobcat Compact Track Loader model T62 is described as a “radius-lift-path compact track loader – also referred to as a skid-steer with tracks – is engineered to get the big jobs done. Boasting an increased lifting capability, the 68-hp T62 delivers powerful digging and grading performance and generous reach at mid range heights.” On the Caterpillar website, the “radius lift path” for the compact track loaders is described as ideal for “dumping over a wall, backfilling or unloading flatbed trucks.” The Bobcat Compact Track Loader model T64 is described as “offer[ing] increased lift capacity and lift height, an inline engine and direct-drive system, excellent visibility and unmatched comfort. This vertical-lift-path compact track loader – also referred to as a skid-steer with tracks – pushes through where other equipment can’t, even in soft, sandy or muddy conditions.” ISSUES: Whether a compact track loader is a works truck of heading 8427, HTSUS, or a shovel loader of heading 8429, HTSUS. Whether the rubber tracks are described by statistical reporting number 8431.20.0000, HTSUSA, or statistical reporting number 8431.49.9095, HTSUSA. Whether the rubber tracks satisfy an exclusion provision pertaining to products described by statistical reporting number 8431.49.9095, HTSUSA and are eligible to claim the secondary tariff number of subheading 9903.88.06, HTSUS. LAW AND ANALYSIS: Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1401-21-106089 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Classification under the 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 GRIs may then be applied. GRI 6 provides as follows: For legal purposes, 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. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The 2021 HTSUS headings under consideration are as follows: 8427 Fork-lift trucks; other wo

Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1401-21-106089 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Classification under the 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 GRIs may then be applied. GRI 6 provides as follows: For legal purposes, 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. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The 2021 HTSUS headings under consideration are as follows:8427 Fork-lift trucks; other works trucks fitted with lifting or handling equipment8429 Self-propelled bulldozers, angledozers, graders, levelers, scrapers, mechanical shovels, excavators, shovel loaders, tamping machines and road rollers8431 Parts suitable for use solely or principally with the machi