CLA-2 RR:CR:GC 966525 DSS
Port Director
U.S. Customs and Border Protection
610 South Canal Street
Chicago, IL 60173
RE: Protest No. 3901-02-101793; Steel Pipe Fittings; Insulated Steel Pipe Fittings;
19 U.S.C. 1625(c)(1); Delayed effective date
Dear Port Director:
This is our decision on Protest No. 3901-02-101793 filed by KMZ Rosenman on behalf of EMCO Electronics International (EMCO or protestant), against your decision regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain steel pipe fittings. Consideration was given to supplemental arguments and information submitted by the protestant, which was received July 10, 2003.
FACTS:
The merchandise under protest consists of certain steel fittings for electrical conduits imported by EMCO and produced in China and India. These fittings are used to connect electrical conduit pipe together or to connect conduit pipe to a junction box. These goods operate/connect by either a set screw mechanism or by compression fitting. The set screw connectors and set screw couplings are fitted with fastening devices such as a Tri-combo, Phillips, or slotted screw or hex bolt. The compression connectors and compression couplings have gland rings or spacers and a compression-type lock nut. These screws, bolts, and nuts come in various sizes, according to the size of the coupling or connector. The protestant claims some of the instant fittings are lined internally with a plastic insulating material.
The protestant advocates classification of the unlined articles in subheading 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other.” It also contends that classification for the insulated articles is under subheading 8547.90.00, HTSUS, as “Insulating fittings for electrical machines, appliances or equipment, being fittings wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during molding solely for the purposes of assembly, other than insulators of heading 8546; electrical conduit tubing and joints therefor, of base metal lined with insulating material: Other.”
The subject entries were liquidated on July 19, 2002. The protest was filed on October 2, 2002.
ISSUES:
Whether the instant steel connectors and couplings are classified under heading 7307, HTSUSA, as tube or pipe fittings; heading 7326, HTSUSA, as other articles of iron or steel; or heading 8547, HTSUSA, as insulated electrical conduit tubing or joints.
Whether HQ 966958, which revoked NY I81109, affects the subject entries.
LAW AND ANALYSIS:
Classification Issues:
Classification under the HTSUSA is made 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 on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 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 not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUSA and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUSA provisions (2002) under consideration are as follows:
Tube or pipe fittings (for example, couplings, elbows, sleeves) of iron or steel:
Other:
Threaded elbows, bends and sleeves:
Sleeves (couplings):
Of iron or nonalloy steel
* *
7307.99 Other:
7307.99.50 Other:
Of iron or nonalloy steel:
Other
* * *
7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron and steel:
Threaded articles:
Other screws and bolts, whether or not with their nuts or washers:
7318.15.20 Bolts and bolts and their nuts or washers entered or exported in the same shipment
* *
Other:
7318.15.60 Having shanks or threads with a diameter of less than 6 mm
7318.15.80 Having shanks or threads with a diameter of 6 mm or more
* * *
Other articles of iron or steel:
Other:
Other:
Other:
Other:
7326.90.8586 Other
* * *
Insulating fittings for electrical machines, appliances or equipment, being fittings wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during molding solely for the purposes of assembly, other than insulators of heading 8546; electrical conduit tubing and joints therefor, of base metal lined with insulating material:
Other:
Electrical conduit tubing and joints therefor, of base metal lined with insulating material:
Joints:
8547.90.0030 Threaded
8547.90.0040 Other
EN 73.07 provides in pertinent part as follows:
This heading covers fittings of 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 (hose clips) used for clamping flexible tubing or hose to rigid piping, taps, connecting pieces, etc.) (heading 73.25 or 73.26)[emphasis in original].
The connection is obtained:
by screwing, when using cast iron or steel threaded fittings;
or by welding, when using butt welding or socket welding steel fittings. In the case of butt welding, the ends of the fittings and of the tubes are square cut or chamfered;
or by contact, when using removable steel fittings.
This heading therefore includes flat flanges and flanges with forged collars, elbows and bends and return bends, reducers, tees, crosses, caps and plugs, lap joint stub ends, fittings for tubular railings and structural elements, off sets, multi branch pieces, couplings or sleeves, clean out traps, nipples, unions, clamps and collars [emphasis added].
In support of its position, the protestant cites New York Ruling Letter (NY) I81109, dated April 26, 2002, where, the protestant contends, Customs issued a ruling for the same products as the instant products, produced by the same manufacturer, and imported by another importer, and which were classified under subheading 7326.90.8586, HTSUSA. Additionally, the protestant claims that some of the couplings that are insulated with plastic are classified in subheading 8547.90.00, HTSUS. Classification in heading 7307, HTSUSA has also been considered. Because heading 7326 covers all articles of iron or steel not elsewhere specified or included (see EN 73.26), the goods will be provided for in heading 7326 only if they are described in that heading and if they are not provided for in heading 7307 or heading 8547.
Documentation in the file, including illustrations, indicates that the couplings serve to connect the bores of two tubes, usually electrical conduits, together. They have indentations in the center or stops to center the bores of the tubes in the coupling. Connectors attach a tube to some other apparatus (i.e., a junction box). One end secures the tube, as the coupling does, by threading or compression set screw; the other end slides into the apparatus and is usually tightened with a lock nut or other fastener. We find that the instant articles without insulating material are within the scope of the description provided in EN 73.07, above. Accordingly, we find that the instant articles without insulating material are provided for in heading 7307, HTSUSA.
It is unclear from the documents in the file whether or not all of the instant articles are threaded. We find that the unlined, threaded couplings and connectors are classified under subheading 7307.92.3010, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves) of iron or steel: Other: Threaded elbows, bends and sleeves: Sleeves (couplings): Of iron or nonalloy steel.” We find that the unlined, unthreaded couplings and connectors are classified under subheading 7307.99.5045, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other: Other: Other: Of iron or nonalloy steel: Other.” EN 73.07 also states in relevant part that the heading excludes “Bolts, nuts, screws, etc. suitable for use in the assembly of tube or pipe fittings (heading 73.18),” which would include the above-mentioned screws, lock nuts and other fasteners.
The information in the file indicates that screws and bolts of various sizes and types were imported in the entries under protest. The threaded bolts used on the fittings are classified under subheading 7318.15.20, HTSUS, with further delineation depending on the diameter and type. The threaded screws used to connect the fittings to the pipes are classified either under subheading 7318.15.60, HTSUS, or subheading 7318.15.80, HTSUS, with further delineation depending on the diameter and type.
Heading 7326
Based upon our determination that the pipe fittings without insulating material are classified under heading 7307, HTSUSA, they are not described or classified in subheading 7326.90.8586, HTSUSA. Upon further review of the information submitted and the classification in NY I81109, we concluded that the classification of the articles in I81109 was incorrect. That ruling was revoked by HQ 966958, dated April 20, 2004. See CUSTOMS BULLETIN of May 4, 2004, vol. 38, no. 19 (containing HQ 966958).
Heading 8547
Electrical conduits coated or lined with insulating material such as special electrically insulating varnish, paper or paperboard, rubber, plastics, etc. are classified under heading 8547, HTSUSA. EN 85.47 states in relevant part:
(B) ELECTRICAL CONDUIT TUBING AND JOINTS THEREFOR, OF BASE METAL LINED WITH INSULATING MATERIAL
This group covers the metal tubing used in permanent electrical installations (e.g., house wiring) as insulation and protection for the wires, provided it has an interior lining of insulating material. Uninsulated metal tubing, often used for the same purpose, is excluded (Section XV).
The tubing of this group consists of spiralled metal strip wound on to an interior tube of insulating material, or of rigid metal tubing (usually iron or steel) coated or lined with insulating material. The insulating material may be special electrically insulating varnish, paper or paperboard, rubber, plastics, etc. Metal tubing simply coated with varnish to prevent corrosion is excluded (Section XV).
This group also covers joints used for connecting tubing of this heading provided they are also of base metal and coated or lined with insulating material (e.g., straight joints, elbows, tee joints and cross-overs).
Uninsulated steel joints are not covered under this heading, and are classified under heading 7307, HTSUSA. In fact, the EN to heading 7307 states that this heading excludes, “(f) Insulated joints for electrical conduit tubing (heading 85.47)." Certain of the entries contain fittings that are coated or plated with plastic insulating material. Those couplings fall under heading 8547, HTSUSA. See NY I84073, dated August 22, 2002.
19 U.S.C. 1625 Issue:
The basic chronology at issue is as follows. The subject entries were filed between March 25, 2002 and July 4, 2002; the goods were entered under subheading 7307.92.3010, HTSUSA. On April 26, 2002, the National Commodity Specialist Division issued NY I81109, which classified similar if not identical couplings and connectors in subheading 7326.90.8586, HTSUSA. On July 19, 2002, the Port of Chicago liquidated the entries under subheading 7307.92.3010, HTSUSA. Based on classification under subheading 7307.92.30, the port also imposed additional duties on the pipe fittings under subheading 9903.73.93, HTSUSA, in accordance with the Section 201 Relief for Certain Steel Products, the subject of Presidential Proclamation 7529, issued on March 5, 2002. On October 2, 2002, the protestant sought to protest the liquidation and assessment of additional duties, citing NY I81109 as justification. On April 21, 2004, Customs issued HQ 966958, which revoked NY I81109 and classified similar couplings and connectors in subheading 7307.99.5045, HTSUSA. HQ 966958 was published in the CUSTOMS BULLETIN on May 5, 2004 (vol. 38, no. 19), and was stated to be effective for merchandise entered or withdrawn from warehouse for consumption on or after July 3, 2004.
19 U.S.C. 1625(c)(1) provides as follows:
(c) Modification and revocation
A proposed interpretive ruling or decision which would-
(1) modify (other than to correct a clerical error) or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days; or
(2) have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions;
shall be published in the Customs Bulletin. The Secretary shall give interested parties an opportunity to submit, during not less than the 30-day period after the date of such publication, comments on the correctness of the proposed ruling or decision. After consideration of any comments received, the Secretary shall publish a final ruling or decision in the Customs Bulletin within 30 days after the closing of the comment period. The final ruling or
decision shall become effective 60 days after the date of its publication.
19 CFR 177.12(e)(2) provides in pertinent part as follows:
177.12 Modification or revocation of interpretive rulings ...
(e) Effective date and application to transactions –
. . .
(2) Rulings or decisions in effect for 60 or more days. If an interpretive ruling or holding or principle covered by a protest review decision that is modified or revoked under this section had been in effect for 60 or more calendar days, the modifying or revoking notice will, provided that liquidation of the entry in question has not become final, apply to merchandise entered, or withdrawn from warehouse for consumption:
(i) Sixty calendar days after the date of publication of the final modifying or revoking notice in the Customs Bulletin under paragraph (b)(2) of this section; . . .
19 CFR 177.9(a) provides in pertinent part as follows:
177.9 Effect of ruling letters.
(a) Effect of ruling letters generally. . . . Generally, a ruling letter is effective on the date it is issued and may be applied to all entries which are unliquidated, or other transactions with respect to which the Customs Service has not taken final action on that date. . . .
As indicated above, the entries which are the subject of this protest were filed between March 25, 2002 and July 4, 2002. HQ 966958 is effective for merchandise entered or withdrawn from warehouse for consumption on or after July 3, 2004.
We therefore find that HQ 966958 is not effective with respect to the subject entries. Additionally, we find that 19 CFR 177.9(a) is support for the proposition that NY I81109 controls with respect to the entries at issue. Any Steel 201 duties assessed should be refunded.
HOLDINGS:
At GRI 1, the instant steel fittings not lined with a plastic insulating material fall under heading 7307, HTSUSA. The unlined, threaded couplings and connectors are classified under subheading 7307.92.3010, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves) of iron or steel: Other: Threaded elbows, bends and sleeves: Sleeves (couplings): Of iron or nonalloy steel.”
The unlined, unthreaded couplings and connectors are classified under subheading 7307.99.5045, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other: Other: Other: Of iron or nonalloy steel: Other.”
The instant steel fittings lined with a plastic insulating material fall under heading 8547, HTSUSA. Those plastic-lined fittings that are threaded are classified under subheading 8547.90.0030, HTSUSA, which provides for: “Insulating fittings for electrical machines, appliances or equipment, being fittings wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during molding solely for the purposes of assembly, other than insulators of heading 8546; electrical conduit tubing and joints therefor, of base metal lined with insulating material: Other: Electrical conduit tubing and joints therefor, of base metal lined with insulating material: Joints: Threaded. “ Those plastic-lined fittings that are not threaded are classified under subheading 8547.90.0040, HTSUSA, which provides for: “Insulating fittings for electrical machines, . . . : Other: Electrical conduit tubing and joints therefor, of base metal lined with insulating material: Joints: Other.”
The threaded bolts fall under heading 7318, HTSUS. They are classified under subheading 7318.15.20, HTSUS, with further delineation depending on the diameter and type. Subheading 7318.15.20, HTSUS, provides for “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron and steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Bolts and bolts and their nuts or washers entered or exported in the same shipment.”
The threaded screws also fall under heading 7318, HTSUS. They are classified either under subheading 7318.15.60, HTSUS, or subheading 7318.15.80, HTSUS, with further delineation depending on the diameter and type. Subheading 7318.15.20, HTSUS, provides for, “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron and steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Other: Having shanks or threads with a diameter of less than 6 mm.” Subheading 7318.15.80, HTSUS, provides for “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron and steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Other: Having shanks or threads with a diameter of 6 mm or more.”
However, based upon our determination with respect to the effective date of HQ 966958, and based upon 19 CFR 177.9(a), the entries at issue should be liquidated under subheading 7326.90.8586, HTSUSA. The 2002 general rate of duty for this subheading is 2.9 percent. Accordingly, you are instructed to ALLOW the protest.
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. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
Sincerely,
Myles B. Harmon
Director,
Commercial Rulings Division