H328283

HQ H328283 September 22, 2023 OT:RR:CTF:EMAIN H328283 LCB CATEGORY: Classification TARIFF NO.: 8430.41.00; 9903.88.01 Port Director U.S. Customs and Border Protection 1600 Airport Drive Great Falls, Montana 59404 Attn: Tami Simmons, Import Specialist, CBP Petroleum Center for Excellence and Expertise RE: Tariff classification of DM 30 II blasthole drill; AFR/Protest No. 2704-21-157614 Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-21-157614 filed on behalf of Epiroc USA, LLC (“Protestant”). Protestant contests the tariff classification by U.S. Customs and Border Protection (“CBP”) of the “DM 30 II” drilling machine, as well as CBP’s decision regarding the applicability of subheading 9903.88.01, HTSUS. The subject entries occurred on December 11, 2019, and February 4, 2020, and were liquidated on April 23, 2021, and March 19, 2021, respectively, under subheading 8430.41.00, HTSUS, as well as subheading 9903.88.02, HTSUS. FACTS: The device that is the subject of the AFR is designated as the DM 30 II drilling machine, which is a top head driven, rotary blasthole drill rig that is suitable for multi-pass rotary and “Down the Hole” (“DTH”) drilling applications. The device is crawler-mounted and self-propelled. A DTH drilling machine uses repetitive percussive forces to open a hole in a rock formation and contains a drill string that rotates while a drilling hammer continuously strikes down the rock formation. The DM 30 II is a type of DTH drilling machine that can achieve a clean hole depth of twenty-eight (28) feet in a single pass and is adapted for blasthole drilling. Blasthole drilling is a technique used in mining where a hole is drilled into the surface of a rock formation, then packed with explosive material and detonated. The initial hole into which the explosives are packed is called the “blasthole.” In addition to being used for blasthole drilling, DTH drilling machines can typically be used in many applications, including geothermal drilling, drilling for mineral exploration, creating water wells, oil and gas drilling, and in the construction industry, they can be used to place pilings, soil anchors, or nails. Although the DM 30 II is a DTH drilling machine, it is not designed for “well sinking” nor for petroleum or natural gas production. Instead, the DM 30 II is specifically designed for blasthole drilling. The DM 30 II can be used as a standard DTH drill rig or can be fitted with rotary drill bits. When used as a standard DTH drill rig, the DM 30 II accepts a drill bit that is essentially a cylindrical disk with multiple carbide or diamond pick insertions that protrude from the face of the drill bit. Like handheld rock picks, the small picks that are inserted into the drill bit are designed to break rock by concentrating force into a small area. The concentrated force is applied via a quick succession of percussive strikes. The DM 30 II can also accept drill bits that contain three saucer-shaped rotating cutters with carbide or diamond rock pick inserts attached to the rotating elements. The following is a photograph of the subject merchandise provided in the Protestant’s submission and also on the company’s website: 
 ISSUE: Whether the subject machine is classified under subheading 8430.31.00, HTSUS, which provides for, in pertinent part, “Rock breaking machines” or under subheading 8430.41.00, which provides for, in pertinent part, “Other boring or sinking machinery.” 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 entries at issue. (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. 2704-21-157614 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 CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise. Specifically, protestant alleges that the classification of the merchandise at liquidation was inconsistent with Headquarter Rulings Letter (HQ) 966134, dated March 26, 2003. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). 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 based on GRI 1, and if the headings and Legal Notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. In addition to the GRIs, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS provisions under consideration in this ruling are as follows: 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: * * * Coal or rock cutters and tunneling machinery: * * * 8430.31.00 Self-propelled 8430.31.0040 Rock-breaking machines * * * Other boring or sinking machinery: * * * 8430.41.00 Self-propelled * * * * The EN to heading 84.30 provides, in pertinent part: 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. *** (III) EXTRACTING, CUTTING OR DRILLING MACHINERY This is mainly used in mining, well-drilling, tunnelling, quarrying, clay cutting, etc. Coal or rock cutters for cutting or breaking down coal, ores, etc. They consist of a bar or disc fitted with pricks, or, more often, of an endless cutting chain running round a metal jib which may be adjustable for level and angle of cut (universal cutters). They may be mounted or self-propelled wheeled or tracklaying chassis, and some (cutter loaders) may be very large, incorporating a number of cutting chains and a built-in conveyor for loading the cut material on to the face conveyor, tubs, etc. Tunnelling machinery. Tunnelling shields have smooth outer surfaces and sharp front cutting edges which are pushed forward into the soil by a hydraulic jacking system. Machines for boring drill holes in rock, coal, etc., and percussion type cutters in which the drill can be swung to make linear cuts. But the heading excludes such tools for working in the hand, pneumatic, hydraulic or with self-contained motor (heading 84.67). *** (G) Ploughs, strippers, etc., consist of cutter blades, ploughs, picks, wedges, etc., which are forced along the face, slicing off the coal, clay, etc., and loading it directly on to face conveyors, etc. The EN to heading 84.30 also provides a Subheading Explanatory Note, which states: Subheadings 8430.31 and 8430.39 These subheadings cover the machines described in paragraphs (A), (B) and (G) of Part (III) of the Explanatory Note to heading 84.30. Neither paragraph (A), (B) nor (G) describes the DM 30 II. Paragraph (A) covers coal or rock cutters that consist of a bar or disc fitted with picks and an endless

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 entries at issue. (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. 2704-21-157614 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 CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise. Specifically, protestant alleges that the classification of the merchandise at liquidation was inconsistent with Headquarter Rulings Letter (HQ) 966134, dated March 26, 2003. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”). 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 based on GRI 1, and if the headings and Legal Notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. In addition to the GRIs, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The HTSUS provisions under consideration in this ruling are as follows:8430 Other moving, grading, leveling, scraping, excavating, tamping, compacting, extracting or boring machinery, for earth, minerals or ores; pile-drivers and pile-extra