HQ 957778: Reconsideration of HQ 955504; Power Take-Off Clutch/Brake; Section XVII, Note 2(f); Explanatory Note 85.05; Section XVI, Note 3; GeneralExplanatory Note (VI) to Section XVI; Composite Machine; GRI 3(c); 8708.99.24

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 957778
                          July 10, 1995


CLA-2 R:C:M 957778 DWS

CATEGORY: Classification

TARIFF NO.: 8505.20.00

Mr. Kenneth R. Paley
Sharretts, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, NY 10004

RE: Reconsideration of HQ 955504; Power Take-Off Clutch/Brake;
    Section XVII, Note 2(f); Explanatory Note 85.05; Section XVI,      Note 3; General
Explanatory Note (VI) to Section XVI;              Composite Machine; GRI 3(c); 8708.99.24

Dear Mr. Paley:

     This is in response to your letters of March 22 and April 7, 1995, on behalf of Kanematsu
USA Inc., requesting reconsideration of HQ 955504, dated September 27, 1994, concerning the
classification of a power take-off clutch brake under the Harmonized Tariff Schedule of the
United States (HTSUS).  

FACTS:

     The merchandise consists of a power take-off (PTO) clutch/brake, which participates in the
rotation of a PTO tractor blade.  When power is applied to the PTO clutch/brake, an
electromagnetic field causes the unit to function as a clutch by pulling the unit's armature until it
engages the pulley, thereby facilitating the turning of the blade.  The existence of the
electromagnetic field and the pulling of the armature draws back the spring-actuated brake which
is then deactivated.  When power to the PTO clutch/brake is terminated and the electromagnetic
field disappears, the clutch is disengaged and the spring-actuated brake halts the blade's rotation
by releasing the armature against the brake shroud, thereby stopping the output pulley.  Although
the blade has stopped, the PTO tractor engine continues to operate.

ISSUE:

     Whether the PTO clutch brake is classifiable under subheading 8708.99.24, HTSUS, as an
other part of tractors suitable for agricultural use, or under subheading 8505.20.00, HTSUS, as an
electromagnetic clutch/brake.

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in accordance with the General Rules of
Interpretation (GRI's).  
GRI 1 provides that classification is determined according to the terms of the headings and any
relative section or chapter notes.

     The subheadings under consideration are as follows:

     8708.99.24: [p]arts and accessories of the motor vehicles
                 of headings 8701 to 8705: [o]ther parts and 
                 accessories: [o]ther: [p]arts of tractors 
                 suitable for agricultural use: [o]ther.

     Goods classifiable under this provision receive duty-free
     treatment.

     8505.20.00: [e]lectromagnetic couplings, clutches and 
                 brakes.

     The general, column one rate of duty for goods classifiable
     under this provision is 3.7 percent ad valorem.

     In HQ 955504, we held that the subject PTO clutch/brake was classifiable under subheading
8505.20.00, HTSUS.

     Section XVII, note 2(f), HTSUS, states that:

     2. The expressions "parts" and "parts and accessories" do 
        not apply to the following articles, whether or not they 
        are identifiable as for the goods of this section:

        (a) - (e) xxx

        (f) Electrical machinery or equipment (chapter 85).

     Therefore, if the PTO clutch/brake is described under subheading 8505.20.00, HTSUS, as an
electromagnetic clutch/brake, in accordance with section XVII, note 2(f), HTSUS, it is precluded
from classification under subheading 8708.99.24, HTSUS.

     There is no question that the clutch portion of the merchandise is an electromagnetic clutch
classifiable under subheading 8505.20.00, HTSUS.  Consequently, we will concentrate on the
classification of the brake portion under the HTSUS.

     In understanding the language of the HTSUS, the Harmonized Commodity Description and
Coding System Explanatory Notes may be utilized.  The Explanatory Notes, although not
dispositive or legally binding, 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, 35128 (August 23, 1989).  In part, Explanatory Note 85.05 (pp. 1340 - 1341)
states that:

     [t]his heading covers electro-magnets, those electro-magnet
     operated appliances specially listed in the heading, 
     permanent magnets and permanent magnet work holders.

     (1) - (4) xxx

     (5) Electro-magnetic brakes.

         These generally consist of shoes which, under the 
         influence of electro-magnets, act on the rim of a wheel 
         or on the rail.  Others are based on the principle of
         electro-magnetic induction, a soft steel disc mounted on
         the shaft being braked by the action of the eddy 
         currents induced in it by electro-magnets.  The heading
         does not, however, cover, mechanical hydraulic or
         pneumatic brakes controlled by electro-magnetic devices.

     All parties recognize that this product is unique and state of the art.  You claim that it is the
internal mechanical processes involved which activate and deactivate the brake.  We do not deny
that mechanical processes are involved.  However, it is the existence or non-existence of the
electromagnetic field which commences the mechanical processes.  This is a fact which has not
been refuted.  Therefore, it continues to be our position that the brake is under the influence of
electromagnets and is an electromagnetic brake classifiable under subheading 8505.20.00,
HTSUS.

     You claim that electromagnetic brakes classifiable as such under the HTSUS include only
those described under Explanatory Note 85.05.  We disagree.  The description for
electromagnetic brakes given in Explanatory Note 85.05 includes the term "generally", which
demonstrates that the note is not exhaustive in its description of electromagnetic brakes.

     You next claim that Explanatory Note 85.05 excludes the subject brake because it is a
mechanical brake controlled by electromagnetic devices.  We disagree.  The brake portion is
under the influence of an electromagnetic field which contributes to its operation.  However, it is
not controlled by an electromagnetic device integral to the PTO clutch/brake.  

     Section XVI, note 3, HTSUS, states:

     3. Unless the context otherwise requires, composite machines
        consisting of two or more machines fitted together to 
        form a whole and other machines adapted for the purpose 
        of performing two or more complementary or alternative 
        functions are to be classified as if consisting only of 
        that component or as being that machine which performs
        the principal function.

     In part, General Explanatory Note (VI) (pp. 1132 - 1133) to section XVI, HTSUS, states:

       (VI) MULTI-FUNCTION MACHINES AND COMPOSITE MACHINES

                         (Section Note 3)

     In general, multi-function machines are classified according
     to the principal function of the machine. . . 

     Where it is not possible to determine the principal 
     function, and where, as provided in Note 3 to the Section, 
     the context does not otherwise require, it is necessary to
     apply General Interpretative Rule 3(c) . . . 

     Composite machines consisting of two or more machines or
     appliances of different kinds, fitted together to form a 
     whole, consecutively or simultaneously performing separate
     functions which are generally complementary and are
     described in different headings of Section XVI, are also 
     classified according to the principal function of the
     composite machine.

     GRI 3(c) states that:

     [w]hen, by application of 2(b) or for any other reason,            goods are, prima facie,
classifiable under two or more             headings, classification shall be effected as follows:

     (a) - (b) xxx

     (c) When goods cannot be classified by reference to 3(a) or            3(b), they shall be classified
under the heading which
         occurs last in numerical order among those which equally
         merit consideration. 

     As the PTO clutch/brake consists of two machines fitted together to form a whole, for
classification purposes, it constitutes a composite machine.  As a principal function cannot be
determined and both machines are classifiable under subheading 8505.20.00, HTSUS, the PTO
clutch/brake is classifiable under subheading 8505.20.00, HTSUS.

HOLDING:

     The PTO clutch/brake is classifiable under subheading 8505.20.00, HTSUS, as an
electromagnetic clutch/brake.

EFFECT ON OTHER RULINGS:

     HQ 955504 is affirmed.

                            Sincerely,



                            John Durant, Director
                            Commercial Rulings Division