CLA-2: RR:CR:TE 967490 ASM
Port Director
Customs and Border Protection
610 S. Canal Street
Room 306
Chicago, Illinois 60607
RE: Decision on Application for Further Review (AFR) of Protest No. 3901-04-101240, concerning the classification of "Bi-Lok"(r) pipe fittings
Dear Port Director:
This is a decision on a protest timely filed on August 26, 2004, on behalf of the Importer, Generant Company, Inc. ("Generant") against your decision in the classification and liquidation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of "Bi-Lok" pipe fittings, entered at the Customs and Border Protection (CBP) port of Chicago, Illinois. Samples have been provided and were examined by this office. On July 19, 2005, a meeting was held with counsel and representatives of Generant. In correspondence dated September 7, 2005, counsel for Generant submitted supplemental comments regarding the classification of the subject merchandise.
FACTS:
The articles under consideration are various components of a "Bi-Lok"(r) pipe fitting system. The first item is a hexagon shaped article, which is labeled as a 3/4 nut and identified as part number DNA 12 SS. This article is a stainless steel nut with an interior circular shape of approximately 1-inch in diameter. The inside of the nut has internal threading, which descends about 3/4 of the way down. There is a shoulder or flange inside the rim with no threading, which prevents a pipe or tube from being threaded through it and emerging at the other end. The second item, labeled a "bulk nut", is identified as part number DNN 6 SS. The DNN 6 SS is similar to the DNA 12 SS in that it is stainless steel with a hexagon shaped exterior. The interior of the DNN 6 SS is also a circular shape. However, the internal circle is only about 3/4 inch in diameter and there is threading all the way through the interior with no shoulder or flange. The third item is labeled a "back ferrule" and is identified as part number DOB 8 SS.
The DOB 8 SS "back ferrules" are unthreaded, narrow stainless steel rings that come two in a package on a plastic spike that is merely used to package the rings. The rings are circular in shape on both the exterior and interior and measure approximately 1/2 inch in diameter. The DOB 8 SS also has a shoulder or flange.
The CBP port of Chicago classified the subject merchandise identified under part numbers DNA 12 SS, DNN 6 SS, and DOB 8 SS, under subheading 7307.29.0090, HTSUSA, which provides for "Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Other, Other".
The Protestant asserts that the pipe fittings, identified as DNA 12 SS and DNN 6 SS, are properly classifiable under subheading 7318.16.0060, HTSUSA, which provides for "Screws, bolts, nuts, . . . : Threaded articles: Nuts, Other: Of stainless steel"; and the back ferrules are classifiable under subheading 7318.29.0000, HTSUSA, which provides for "Screws, bolts, nuts, . . . : Non-threaded articles: Other". The Protestant asserts that the application of GRI 1 serves to preclude classification of these items as fittings in 7307, HTSUSA. It is also noted that the terms of heading 7307, HTSUSA, do not provide for "parts". Furthermore, the Protestant asserts that the EN to 7307 precludes the classification of "bolts, nuts, screws etc., suitable for use in the assembly of tube or pipe fittings" in the heading and that the EN directs classification to heading 7318. Finally, the Protestant notes that the language of heading 7318 specifically provides for "screws, bolts, nuts . . and similar articles".
We note that AFR was properly granted as the Protestant argues questions of fact and law, which have not been ruled upon by Customs and Border Protection (CBP) or by the courts. See 19 C.F.R. 174.24(b). This protest involves a unique set of facts as set forth below.
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).
The HTSUSA provisions under consideration are as follows:
7307 Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel:
* * *
Other, of stainless steel:
7307.29.00 Other
7307.29.0090 Other
* * *
7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel:
Threaded articles:
* * *
7318.16.00 Nuts
Other:
7318.16.60 Of stainless steel
* * *
Non-threaded articles:
* * *
7318.29.00 Other
* * *
7326 Other articles of iron or steel:
7326.90 Other:
Other:
7326.90.85 Other
7326.90.8587 Other
EN 73.07 provides in pertinent part as follows:
This heading covers fittings or iron or steel, mainly used for connecting the bores of two tubes together, or for connecting a tube to some other apparatus, or for closing the tube aperture. This heading does not however cover articles used for installing pipes
and tubes but which do not form an integral part of the bore e.g., hangers, stays and similar supports which merely fix or support the tubes and pipes on walls, clamping or tightening bands or collars . . . .
The connection is obtained:
- by screwing, when using cast iron or steel threaded fittings;
* * *
This heading therefore includes . . . unions . . . .
This heading excludes:
* * *
(b) Bolts, nuts, screws, etc., suitable for use in the assembly of tube or pipe fittings (heading 73.18).
[All emphasis in original.]
EN 73.18 provides in pertinent part as follows:
Nuts are metal pieces designed to hold the corresponding bolts in place. They are usually tapped throughout but are sometimes blind. The heading includes wing nuts, butterfly nuts, etc. Lock nuts (usually thinner and castellated) are sometimes used with bolts. [Emphasis in original.]
EN 73.26 provides in pertinent part as follows:
This heading covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such as folding, assembling, welding, turning, milling or perforating other than articles included in the preceding headings of this Chapter or covered by Note 1 to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.
The heading includes:
(1) . . . clamping or tightening bands or collars (hose clips) used
for clamping flexible tubing or hose to rigid piping, taps, etc.;
hangers, stays and similar supports for fixing piping and
tubing . . .
Part Numbers DNA 12 SS and DNN 6 SS
In considering classification of the articles identified as DNA 12 SS and DNN 6 SS in heading 7307, HTSUSA, we find that certain of the language of EN 73.07 is critical to this issue. The language of heading 7307, HTSUSA, provides for ". . . fittings of iron or steel, mainly used for connecting the bores of two tubes together . . . ". Documentation in the file, including illustrations, indicates that the pipe fittings, DNA 12 SS and DNN 6 SS, serve to connect tube components. The documentation of record indicates that the subject pipe fittings, DNA 12 SS and DNN 6 SS, are used to connect the bores of two tubes together. Therefore, we find that the subject pipe fitting nuts are within the scope of the description provided in EN 73.07, above. Accordingly, we find that the subject pipe fitting nuts are provided for in heading 7307, HTSUSA. We find that they are classified in subheading 7307.29.0090, HTSUSA, as: "Tube or pipe fittings (for example, couplings, elbows, sleeves) of iron or steel: Other, of stainless steel: Other, Other."
The Protestant argues that nuts and ferrules are nothing more than "parts" of a complete fitting and cite to several cases in support of the assertion that " . . . an eo nomine provision which does not specifically provide for parts does not include parts". However, it is important to note that the exemplars in heading 7307, HTSUSA, specifically refer to "couplings" and "elbows" which may also be described as "parts" of a complete tube or pipe fitting. As such, the subject articles, DNA 12 SS and DNN 6 SS, would not necessarily be precluded from classification in heading 7307, HTSUSA, merely because they form part of the "Bi-Lok"(r) pipe fitting system.
Protestant also asserts that DNA 12 SS and DNN 6 SS are "nuts" within the meaning of subheading 7318.16.00, HTSUSA. The common nut performs its fastening function by holding the article in place by the compression that the exterior face creates with the assistance of the threaded bolt, screw, or stud. The Merriam-Webster OnLine Dictionary defines a "nut" as " . . . a perforated block usually of metal that has an internal screw thread and is used on a bolt or screw for tightening or holding something." Typically, a common nut is marketed as a fastener and sold within the fastener section of a hardware department. The subject articles, DNA 12 SS and DNN 6 SS, are "fitting nuts", which are specially designed and marketed for use in plumbing systems. This is further evidenced by the fact that the stated dimensions of these articles reference the interior diameter of the pipe they will fit on.
In view of the foregoing, we reject the Protestant's assertion that DNA 12 SS and DNN 6 SS are eo nomine provided for as "nuts" of subheading 7318.16.00, HTSUSA. Our determination is supported by prior CBP Headquarters Ruling Letter (HQ) 965939, dated July 16, 2003, wherein it was determined that "pipe fittings nuts" and "common nuts" are designed differently, function differently, and are marketed differently with no "commercial interchangeability". As such, HQ 965939 held that the pipe fitting nuts were not described in heading 7318, HTSUSA, and were properly classifiable in subheading 7307.19.90, HTSUSA, which specifically provides for "Tube or pipe fittings (for example, couplings, elbows, sleeves) of iron or steel: Cast fittings: Other: Other".
In citing to the case of Mitsubishi International Corp v. United States, 78 Cust. Ct. 4, C.D. 4686 (1977), Protestant submits that the conclusion drawn from the analysis in HQ 965939 is wrong. We disagree. The Mitsubishi case was decided under the Tariff Schedule of the United States (TSUS), which preceded the HTSUSA, and it involved the classification of various articles consisting of bent pipe, articulation joints, reducers, sliding and fixed base plates and test pieces. Thus, it is not directly applicable to the pipe fitting nuts discussed in HQ 965939. Indeed, the Mitsubishi case sets forth several definitions, which support our determination that the subject "nuts" may be "pipe fittings" as follows:
Audels Mechanical Dictionary (1942) defines "pipe fittings" as follows:
"Connections, appliances, and adjuncts designed to be used in
connection with iron pipes, such as elbows and bends to alter the
direction of a pipe; tees and crosses to connect a branch with a
main; plugs to close an end; bushings, diminishers or reducing
sockets to couple to pipes of different dimensions, etc." (Emphasis
in original.)
The Dictionary of Mechanical Engineering, Del Vecchio (1961), defines
"fittings" as - -
"Parts of a pipe line other than straight pipe or valves, such as
couplings, elbows, tees, unions and increasers."
In particular the definition contained in the Audels Mechanical Dictionary (1942) broadly defines "pipe fittings" as connections, appliances, and adjuncts, which are designed for use in connection with iron pipes. Such a definition clearly encompasses the DNA 12 SS and DNN 6 SS nuts which are specifically designed for use in connection with the "Bi-Lok"(r) pipe fitting system. Furthermore, these specially designed components are not "straight pipe or valves" that are precluded from the "fittings" definition set forth in the Dictionary of Mechanical Engineering (1961).
We find that the CBP Chicago Port correctly classified the articles identified as DNA 12 SS and DNN 6 SS, as "Tube or pipe fittings . . ." in subheading 7307.29.0090, HTSUSA.
Part Number DOB 8 SS
We disagree with Protestant's assertion that the article identified as a "back ferrule", DOB 8 SS, functions like a "washer" of heading 7318, HTSUSA. In relevant part, EN 73.18 states that "Washers are usually small, thin discs with a hole in the centre; they are placed between the nut and one of the parts to be fixed to protect the latter." However, it is important to note that the subject ferrules are different from "washers" in that they are actually used within the fitting. The back ferrule holds the tube in place so that when the nut is tightened, the back ferrule can engage the front ferrule and the nut compresses them to form a waterproof seal. Thus, the purpose of the ferrule is not to protect any parts but rather to form a tight seal. As such, the "back ferrrule", DOB 8 SS, would not fall into subheading 7318.29, HTSUSA, which is the provision for other non-threaded articles, because it does not perform a fastening function similar to tension pins or clevis pins which do fall in this provision.
In addition, we have reviewed the marketing documentation for the subject ferrules and note that they are designed to contribute to the high integrity sealing capability of the fitting. The marketing catalogue states, "The tightening of the nut provides the axial thrust required to engage the actively held ferrules against the outside diameter of the tubing. The staged swaging action of the ferrules, with minimal torque transfer to the tubing during make-up, provides the key to Bi-Lok's high integrity sealing capabilities and exceptional service life." Accordingly, the subject ferrules are designed to assist in the connection of the fitting by providing a tight seal. However, the ferrules are not actually performing the connection between the bores of the tubes.
In CBP New York Ruling Letter (NY) K86336, dated June 14, 2004, certain pipe fittings identified as "follower rings", were classified as other cast iron parts in subheading 7325.99.1000, HTSUSA. These "follower rings" functioned in a similar manner to the subject ferrules, i.e., when the bolt was tightened, the "follower rings" were drawn toward each other, compressing the gaskets and forming a leak proof seal. Similarly, in NY J82246, a stainless steel plug, which served to seal off the connection in a collet gland assembly, was classified as other articles of iron or steel in subheading 7326.90.85, HTSUSA.
Based on the above, the articles identified as "back ferrules", DOB 8 SS, are classifiable as "Other articles of iron or steel" in subheading 7326.90.8587, HTSUSA. As such, we find that the CBP Chicago Port incorrectly classified the "back ferrule", DOB 8 SS, in subheading 7307.29.0090, HTSUSA.
HOLDING:
The subject merchandise, identified as part numbers DNA 12 SS and DNN 6 SS, are correctly classified in subheading 7307.29.0090, HTSUSA, which provides for, "Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Other, Other." The general column one duty rate on the date of entry was 5 percent ad valorem.
The subject merchandise, identified as part number DOB 8 SS, is correctly classified in subheading 7326.90.8587, HTSUSA, which provides for "Other articles of iron or steel: Other: Other: Other, Other." The general column one duty rate on the date of entry was 2.9 percent ad valorem.
The protest should be DENIED in part. The protest should be DENIED, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 CBP personnel, and to the public, on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
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