VAL CO:R:C:V 545264 CRS

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: AFR of Protest No. 3801-2-101415; classification; valuation; parts of a friction roller conveyor system; rate advance; value advance; Alyeska Pipeline Service Co., v. United States; C.S.D. 83-39; dutiability of foreign assembly, testing and dismantling charges included in the price actually paid or payable

Dear Sir:

This is in reply to your memorandum of March 8, 1993, under cover of which you forwarded an application for further review the above-referenced protest, filed on April 23, 1992, by Edmund Maciorowski, counsel for protestant Kuka Schweissanlagen & Roboter GmbH. A further submission was made on December 1, 1992. Following a meeting with members of my staff on June 29, 1993, protestant made an additional submission in a letter dated September 16, 1993. We regret the delay in responding.

FACTS:

The instant protest and application for further review concerns rate and value advances issued against three entries of merchandise imported through the port of Detroit, Michigan. The protested entries were part of a contract between protestant and Ford Motor Company involving a total of thirty-five entries filed in Detroit and Baltimore, Maryland. The merchandise imported under the thirty-five entries comprised all the components of a complete friction roller conveyor system designed to supply chassis parts to passenger vehicle assembly stations. The protestant is the importer of record.

Classification

The protest concerns only three of the thirty-five entries that together comprise the complete friction roller conveyor system purchased by the protestant pursuant to its contract with Ford. The three protested entries consist of certain components that form part of the imported friction roller conveyor system. The first entry consists of forty-three pre-cut length electric cables with attached fittings used as control wiring to connect junction boxes with control cabinets. The second entry consists of conveyor segments with friction rollers. The third entry consists of: two transformer-receivers, rated at less than 1 kva, used to transmit assembly data to the main assembly line; an AC gearmotor for an elevator used in the conveyor system; a steel frame, electric motor, pallet carrier sled, and electric switch apparatus.

The protested merchandise was entered under item 664.10, TSUS, as parts of conveyors, or in the case of the third entry, as an entirety forming an elevator. However, all three of the entries were liquidated under item 678.50, TSUS, as machines not specially provided for, and parts thereof.

Classification of the merchandise under item 653.00, TSUS, other structures of base metal, and under item 682.05, 682.20, or 682.25, TSUS, depending on horsepower, as generators, motors or transformers, and under item 685.90, TSUS, as electrical switches, and under item 688.18, TSUS, as insulated electrical conductors, and under item 692.60, TSUS, are also under consideration.

The tariff items under consideration are as follows:

653.00 . . . other structures and parts of structures, all the foregoing of base metal: [o]ther. . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.3 percent ad valorem.

664.10 Elevators, hoists, winches, cranes, jacks, pulley, tackle, belt conveyors, and other lifting, handling, loading, or unloading machinery, and conveyors, all the foregoing and parts thereof not provided for in item 664.06, 664.07, or 664.08. . . .

Goods classifiable under this provision have a general, column one rate of duty of 2.0 percent ad valorem.

678.50 Machines not specially provided for, and parts thereof . . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.7 percent ad valorem.

Generators, motors, motor-generators, converters (rotary or static), transformers, rectifiers and rectifying apparatus, and inductors; all the foregoing which are electrical goods, and parts thereof. . . .

682.05 Transformers: Rated at less than 1 kva. . . .

Goods classifiable under this provision have a general, column one rate of duty of 6.6 percent ad valorem.

682.20 Motors: Of under 1/40 horsepower: Synchronous, valued not over $4 each . . . .

Goods classifiable under this provision have a general, column one rate of duty of 10.0 percent ad valorem.

682.25 Motors: Of under 1/40 horsepower: Other. . . .

Goods classifiable under this provision have a general, column one rate of duty of 6.6 percent ad valorem.

685.90 Electrical switches, relays, fuses, lightning arresters, plugs, receptacles, lamp sockets, terminals, terminal strips, junction boxes and other electrical apparatus for making or breaking electrical circuits, for the protection of electrical circuits, or for making connection to or in electrical circuits; switchboards (except telephone switchboards) and control panels; all the foregoing and parts thereof. . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.3 percent ad valorem.

688.18 Insulated (included enameled or anodized) electrical conductors, whether or not fitted with connectors. . .: With fittings: Other: Other . . .

Goods classifiable under this provision have a general, column one rate of duty of 5.3 percent ad valorem.

692.60 Vehicles (including trailers), not self-propelled, not specially provided for, and parts thereof. . . .

Goods classifiable under this provision have a general, column one rate of duty of 3.2 percent ad valorem.

Value

Protestant also contends that the value advance issued against one of the three subject entries was improper in that it reflected the value of merchandise not covered by the protested entry. The entry in question was filed on May 23, 1988, and covered forty-three cables forming part of a conveyor loop, which itself formed part of the overall friction roller conveyor system. Other than the protested entries, the equipment comprising this system was entered through the port of Baltimore.

The friction roller conveyor system was imported pursuant to a purchase order between the protestant and Ford dated October 1, 1986. The purchase order was subsequently modified by a "purchase order amendment" dated October 28, 1988. The price of the friction roller conveyor system according to the original purchase order and the amendment included the cost of engineering, assembling, testing and dismantling work incurred in Germany in the amount of $8,467,406 (DM 14,011,018). However, these amounts were not reflected on the invoice value of the imported merchandise.

The commodity specialist team in Detroit requested additional value information from the protestant via a CF 28 dated August 28, 1988. A response to the inquiry was received under cover of a letter from counsel dated August 2, 1989, and included a tender check for additional duty due, as calculated by protestant, in the amount of $61,380.00. However, protestant's calculation of appraised value, upon which was based its tender of additional duty, did not include costs related to engineering, assembling, testing and dismantling. Accordingly, the commodity specialist team issued a value advance to cover these amounts which related to the purchase order contract as a whole rather than specifically to the merchandise covered by the subject entry. The merchandise imported under the subject entry was appraised under transaction value based on the price actually paid or payable plus the amount for foreign assembly, testing and dismantling charges.

ISSUES:

The issues presented are: (1) whether the three separate entries are classifiable as an complete friction roller conveyor system under the TSUS? (2) whether engineering, assembling, testing and dismantling cost are part of the price actually paid or payable such that they are included in transaction value; and (3) whether the merchandise was properly the subject of the value advance.

LAW AND ANALYSIS:

Classification

The protestant claims that all of the entries are classifiable as parts of conveyors under item 664.10, TSUS, and in the case of the third entry, as an entirety forming an elevator. General Headnote 10(ij) states as follows: "a provision for 'parts' of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part." Based upon General Headnote 10(ij), any part which is specifically provided for in an item will be classified there over a parts provision.

The first entry consists of 43 electric cables with attached fittings used as control wiring to connect junction boxes with control cabinets. Electric cables with fittings are specifically provided for under item 688.18, TSUS, as other insulated electrical conductors, fitted with connectors. Based upon General Headnote 10(ij), the electric cables for the first entry are classifiable under item 688.18, TSUS.

However, we agree with the protestant's claim in regards to classifying the second entry consisting of conveyor segments with friction rollers under item 664.10, TSUS, as parts of conveyors, in the absence of a more specific tariff classification provision.

The protestant also claimed that the third entry constituted an entirety as an elevator. The third entry consists of: two transformer-receivers, rated at less than 1 kva, used to transmit assembly data to the main assembly line; an AC gearmotor for an elevator used in the conveyor system; a steel frame, electric motor, pallet carrier sled, and electric switch apparatus. In KMW Johnson, Inc. v. United States, 13 CIT 1079, 1082 (1989), the court defined the doctrine of "entireties" by stating that:

if there are imported in one importation separate entities, which by their nature are obviously intended to be used as a unit, or to be joined together by mere assembly, and in such use or joining the individual identities of the separate entities are subordinated to the identity of the combined entity, duty will be imposed upon the entity they represent." [citations omitted]

In United States v. Baldt Anchor, Chain & Forge Division of Boston Metals Co., 59 CCPA 122, C.A.D. 1051, 429 F.2d 1403 (1972), and Franklin Industries, Inc. v. United States, 1 CIT 349, Slip Op. 81-55 (1981), the courts have held that to enjoy classification under a single tariff item number all components necessary to the completion of a particular article must be imported in the same shipment. In order to constitute an entirety as an elevator, guide rails and connectors are also needed with the items of the third entry. Because these items were not imported with the third entry, it cannot be classified as an entirety. Therefore, each of the subject items must be separately classified.

In C.I.E. 1925/65 [abstracted as TD 56502(46)], it was determined that gearmotors which consist of an electric motor with an enclosed speed reducing gear system built as an integral unit, are more than a motor and are therefore classified under item 678.50, TSUS, as machines not specially provided for elsewhere. Based upon the above decision, we find that the gearmotor in the third entry is classified under item 678.50, TSUS.

The 2 transformer-receivers, rated at less than 1 kva, are specifically provided for in item 682.05, TSUS. The electric motors in the third entry are specifically provided for under items 682.20 through 682.50, TSUS, depending on its horsepower. The electrical switching apparatus are specifically provided for in item 685.90, TSUS.

Schedule 6, Part 4 headnote 1(v) provides as follows: "This part does not cover articles and parts of articles specifically provided for elsewhere in the schedules." The steel frame is provided for in Schedule 6, Part 3 under item 653.00, TSUS, as other steel structures.

Applying General Headnote 10(ij) to the pallet carrier sled, we find that it is classifiable in item 664.10, TSUS, as conveyor parts, in the absence of a more specific tariff classification provision.

Value

Merchandise imported into the United States is appraised in accordance with section 402 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C.  1401a; TAA). The preferred method of appraisement under the TAA is transaction value defined as "the price actually paid or payable for imported merchandise when sold for exportation to the United States." 19 U.S.C.  1401a(b)(1).

Pursuant to section 402(b)(4) of the TAA the term "price actually paid or payable" is defined as "the total payment (whether direct or indirect...) made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller. 19 U.S.C.  1401a(b)(4). The Court of International Trade has held that so long as a payment is made "to the seller in exchange for merchandise sold for export to the United States, the payment properly may be included in transaction value, even if the payment represents something other than the per se value of the goods." Generra Sportswear Company v. United States, 905 F.2d 377, 380 (Ct. Int'l Trade 1990).

In the instant case the payments made by the buyer, Ford Motor Company, to the seller, the protestant, included amounts for engineering, assembling, testing and dismantling. These amounts were part of the purchase order price for the entire friction roller conveyor system. Accordingly, under Generra they are part of the price actually paid or payable for the imported merchandise.

Nevertheless, counsel for protestant maintains that value advance was improper to the extent that it reflected the value of merchandise not covered by the protested entry. In support of this position counsel cites Alyeska Pipeline Service Co., v. United States, 10 CIT 510 (1986), 643 F.Supp.1128, reh'g granted, 11 CIT 931 (1987), 683 F.Supp. 817. In that case, Customs advanced the value of a single entry to cover value advances relating to twenty-three other entries, including two which were not before the court. Judge Watson stated:

The law does not permit the Customs Service to assign to one entry the values of merchandise in other entries or the duties owing on them. 19 U.S.C.  1500 provides for separate, unitary appraisement . . . .

It follows that the only proper value increase for the entry in question would be one reflecting the value of the merchandise covered by that entry and no other merchandise.

Alyeska Pipeline, 10 CIT 510, 516. See also C.S.D. 83-39, 17 Cust. B. & Dec. 794 (1983).

The facts in the instant case are similar to those in Alyeska Pipeline in that one entry was advanced in value in order to reflect a value increase in regard to merchandise imported under other entries, i.e., the thirty-five entries that comprised the complete friction roller conveyor system. It is therefore our position that the value advance was improper to the extent that it related to merchandise other than that covered by the entry that was value advanced. Nevertheless, payments can be apportioned. Chrysler Corporation v. United States, No. 88-03-00249, slip op. at 18 (Ct. Int'l Trade Sept. 22, 1993). However, the method of apportionment must be reasonable and in accordance with generally accepted accounting principles. In the instant case, that part of the payments at issue (DM 14,011,018) that relates to the protested merchandise should be apportioned over the entry in question.

HOLDING:

The protest should be allowed in part and denied in part in conformity with foregoing. The payments at issue, totaling $8,467,406 (DM 14,011,018), should be apportioned over the entry that was advanced in value to the extent that they relate thereto.

The merchandise should be classified in the respective provisions as more fully described above. Because reclassification of the merchandise as indicated above would result in no net duty reduction, you should deny the protest in full in regard to classification issues.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than sixty days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division