CLA-2 RR:CR:GC 965198 GOB
Port Director
U.S. Customs Service
One East Bay Street
Savannah, GA 31401
RE: Protest 1703-01-100097; Welded Tube Mill
Dear Port Director:
This is our decision regarding Protest 1703-01-100097, filed by Okaya (U.S.A.), Inc. (“protestant”) concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of the MTU-65S type tube mill for stainless steel tube.
FACTS:
The file reflects the following. The entry at issue was filed on January 16, 2001, and was liquidated on July 6, 2001. The protest was filed on July 18, 2001.
The specification for the MTU-65S type tube mill for stainless steel tube (“welded tube mill”) provides that “[t]his equipment is to form, weld, size and cut continuously the stated tube range from Stainless Steel using TIG Welding with Argon gas.” The welded tube mill is composed of the following: uncoiler; shear and welder; forming section; welding section; sizing section; cut-off machine and run out table; and electronics.
The protestant entered the welded tube mill in subheading 8455.10.00, HTSUS, as: “Metal-rolling mills and rolls therefor; parts thereof: Tube mills.” The entry was liquidated under subheading 8515.31.00, HTSUS, as: “. . . plasma arc soldering, brazing or welding machines and apparatus . . .: Machines and apparatus for arc (including plasma arc) welding of metals: Fully or partly automatic.”
ISSUE:
What is the classification under the HTSUS of the welded tube mill?
LAW AND ANALYSIS:
We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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’s may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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.
The HTSUS provisions under consideration are as follows:
8455 Metal-rolling mills and rolls therefor; parts thereof:
8455.10.00 Tube mills
* * * * * *
8462 . . . machine tools (including presses) for working metal by bending, folding, straightening, flattening, shearing, punching or notching . . .
Bending, folding, straightening or flattening machines (including presses):
8462.21 Numerically controlled:
8462.21.80 Other
8462.29 Other:
8462.29.80 Other
* * * * * *
8515 . . . magnetic pulse or plasma arc soldering, brazing or welding machines and apparatus, whether or not capable of cutting . . .
Machines and apparatus for arc (including plasma arc) welding of metals:
8515.31.00 Fully or partly automatic
* * * * * *
Note 4 to Section XVI, HTSUS (which includes Chapters 84 and 85, HTSUS) provides as follows:
Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function.
EN 84.55 provides in pertinent part as follows:
Rolling mills are metal working machines consisting essentially of a system of rollers between which the metal is passed; the metal is rolled out or shaped by the pressure exerted by the rollers, and at the same time the rolling modifies the structure of the metal and improves its quality . . .
. . . Other roller machines (e.g., for gumming metal foil on to a paper support) (heading 84.20), bending, folding, straightening or flattening machines (heading 84.62) are not regarded as rolling mills in the sense described above and are therefore excluded from this heading.
Rolling mills are of various types according to the particular rolling operations for which they are designed, viz. :
(A) Rolling out to reduce the thickness with a corresponding increase in length (e.g., in the rolling of ingots into blooms, billets or slabs; rolling of slabs into sheet, strip, etc.).
(B) Rolling of blooms, billets, etc., to form a particular cross-section (e.g., in the production of bars, rods, angles, shapes, sections, girders, railway rails).
(C) Rolling tubes.
(D) Rolling of wheel blanks or wheel rim blanks (e.g., to shape the flanges of railway wheels).
[All emphasis in original.]
EN 84.62 provides in pertinent part as follows:
The heading covers certain machine tools, listed in the heading text, which work by changing the shape or form of metal or metal carbides.
. . .
The heading includes:
. . .
(2) Bending machines. These include machines for working flat products (sheets, plates and strips) which, by passing the products through three or four sets of rollers, give them a cylindrical curve . . . or else a conical shape . . . ; machines for working non-flat products (bars, rods, angles, shapes, sections, tubes). These machines work either by means of forming rollers, by press bending, or, for tubes (and, in particular, oil pipes), by drawing their ends while the main section is held by a fixed cylinder.
[Emphasis in original.]
A welded tube mill essentially takes coiled metal strip, passes it through a series of bending rolls which gradually form it into a cylindrical tube, welds the seam to close the tube, sizes the welded tube, and cuts it off to the desired length. The merchandise at issue here is a complete welded tube mill.
With respect to the applicability of heading 8455, HTSUS, we note the exclusion from heading 8455, HTSUS, in EN 84.55, excerpted above, of “ . . . bending, folding, straightening and flattening machines (heading 84.62) . . .” The subject welded tube mill is essentially a metal forming or bending machine which would exclude it from heading 8455, HTSUS. Further, we find that the welded tube mill is not a rolling mill described in EN 84.55, excerpted above (see (A) through (D)). Additionally, EN 84.55 provides several specific examples (not excerpted above)) of the rolling mills of the
type referred to in (C) and (D). Welded tube mills are not included in these specific examples.
We find that the welded tube mill consists of several components which are intended to contribute together to the clearly defined function of forming the metal. The components are either separate or interconnected by devices within the meaning of Note 4 to Section XVI, HTSUS. Therefore, by Note 4 to Section XVI, HTSUS, we conclude that the function of the welded tube mill is essentially a metal forming operation which involves a bending of the metal so as to impart a cylindrical curve to the metal sheet to form a tube. Accordingly, we find that the welded tube mill is described in heading 8462, HTSUS. See EN 84.62, excerpted above. It is classified in subheading 8462.29.80, HTSUS, as: “. . . machine tools (including presses) for working metal by bending, folding, straightening, flattening, shearing, punching or notching . . .: Bending, folding, straightening or flattening machines (including presses): . . . Other: . . . Other.” The rate of duty for this provision is greater than the rate for the provision under which the entry was liquidated.
Our determination is consistent with a decision of the Harmonized System Committee in HSC 26 in November 2000 (See the Compendium of Classification Opinions, p. 34E) where the HSC classified a section of a tube mill in heading 8462, HTS. The good was described as: “. . . welded tube mill machinery presented without welding equipment. It is used to process coiled metal strip into tubular forms. The machinery consists of the following components: an edge trimmer; breakdown or forming rolls; idler vertical closing rolls; and fin pass roils.” The good in the HSC decision differs from the welded tube mill at issue here in that the good in the HSC decision is only a section of a tube mill (e.g., it was imported without welding equipment), as opposed to the complete tube mill here. However, we believe the HSC decision is relevant here. As we stated in T.D. 89-80, decisions in the Compendium of Classification Opinions should be treated in the same manner as the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. T.D. 89-80 further states that EN’s and decisions in the Compendium of Classification Opinions “should receive considerable weight.”
HOLDING:
The welded tube mill is classified in subheading 8462.29.80, HTSUS, as: “. . . machine tools (including presses) for working metal by bending, folding, straightening, flattening, shearing, punching or notching . . .: Bending, folding, straightening or flattening machines (including presses): . . . Other: . . . Other.”
Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division