CLA-2 RR:CR:GC 966728 DSS
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130-7939
RE: Protest No. 4115-03-100010; Steel swivel joints and bearing modules from Germany
Dear Port Director:
This is our decision on Protest No. 4115-03-100010 filed by Syltone Industries (protestant), against your decision regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of certain steel swivel joints and bearing modules.
FACTS:
The articles under protest consist of swivel joints and bearing modules. The swivel joints are flanged fittings used to connect pipe in fluid transfer applications. Information contained on the manufacturer’s website indicates the following. The swivel joint is comprised of a “ballrace” module, two flanges, screws, and a seal. The ballrace module is essentially a radial ball bearing assembled from an inner and outer race and steel balls. The races are drilled to accept the flanges. The information also indicates that the ball track of the bearing module is hardened and precision ground with the exception of the aluminum version.
At liquidation, you classified the five entries of subject merchandise under subheadings 8482.10.5048, 8482.10.5052 and 8482.10.5056, HTSUSA, as radial ball bearings, according to the outside diameter of the outer races. You also assessed antidumping duties on the merchandise pursuant to the antidumping duty order on antifriction bearings from Germany.
The protestant advocates classification of the swivel joints under subheading 7307.29.00, HTSUS, which provides for “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Other.” It also contends that classification for the bearing modules is under subheading 8482.10.5004, HTSUSA, as “Ball or roller bearings, and parts thereof: Ball bearings: Other: Unground bearings.” Protestant contends that the merchandise is not subject to the antidumping order on antifriction bearings from Germany, in part, because they are unground.
The subject merchandise was entered between September 21, 2001 and December 5, 2001. The subject entries were liquidated February 28, 2003. The protest was filed on May 27, 2003.
ISSUE:
Whether the instant steel swivel joints and bearing modules are classified under heading 7307, HTSUSA, as tube or pipe fittings or heading 8482, HTSUSA, as radial ball bearings.
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
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 (CBP) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUSA provisions (2001) 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
* *
Other:
Other:
Other:
Of iron or nonalloy steel:
Other
7307.99.5060 Of alloy steel (except stainless steel)
* * * *
8482 Ball or roller bearings, and parts thereof:
Ball bearings:
Other:
Other:
Radial bearings:
Single row bearings:
Other bearings, having an outside diameter of:
Over 30 mm but not over 52 mm
Over 52 mm but not over 100 mm
8482.10.5056 Over 100 mm
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.
Relevant ENs for Chapter 84 state that heading 8482 covers ball, roller, or needle roller type bearings that enable friction to be considerably reduced. They may be designed to give radial support or to resist thrust. This EN states further that normally, bearings consist of two concentric rings or races enclosing the balls or rollers, and a cage which keeps them in place and ensures that their spacing remains constant. Indeed, known by various names, articles that function to position, hold and guide moving machine parts, as well as reduce friction during such movement, have been held to be ball or roller bearings of heading 8482. See THK America, Inc. v. United States, 17 CIT 1169 (1993), and lexicographic sources cited.
Information from the manufacturer’s website indicates that although the swivel joints contain a bearing module that allows them to swivel, the addition of the flanges, screws and seal to the bearing module forms a fitting used for connecting the bores of two pipes together. Moreover, the swivel joint not only connects the bores of tubes together, but it also contains a seal that completes the connection and allows fluids to flow through the joint. Therefore, we find that the instant complete swivel joints are within the description provided in EN 73.07, above. Accordingly, the completed swivel joints are provided for in heading 7307, HTSUSA. It is unclear in the file if the swivel joints are made of stainless steel. If the swivel joints are made of stainless steel, they are classified under 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.” If the swivel joints are made of another steel, they are classified under subheading 7307.99.5045, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other: Other: Of iron or nonalloy steel: Other” or under subheading 7307.99.5060, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other: Other: Of alloy steel (except stainless steel).”
The bearing modules meet the definition of ball bearings and the terms of heading 8482, HTSUSA. They reduce friction and position, hold, and guide the segments of pipe. As a result, the bearing modules are properly classified as radial ball bearings according to the outside diameter of the outer race under subheadings 8482.10.5048, 8482.10.5052 or 8482.10.5056, HTSUSA. Information contained on the manufacturer’s website indicates that the subject bearing modules are “precision ground” and, hence, are not classified under subheading 8482.10.5004, HTSUSA.
The protestant also questions whether the instant articles are subject to antidumping duties. Radial ball bearings from Germany are subject to antidumping duties. See Notice of Antidumping Duty Order: Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, A-428-801, 54 Fed Reg. 20900 (May 15, 1989). CBP should assess antidumping duties on the bearing modules.
CBP has been designated to administer the HTSUS. Therefore, the classification of imported merchandise is a matter properly determined by this agency. The determination of whether specific merchandise is subject to antidumping duties is within the purview of the International Trade Administration, U.S. Department of Commerce. The Court of International Trade has stated:
The Court distinguishes between the authority of [CBP] to classify according to tariff classifications (19 USC § 1500) and the power of the agencies administering the antidumping law to determine a class or kind of merchandise. The determinations under the antidumping law may properly result in the creation of classes which do not correspond to classification found in the tariff schedules or may define or modify a known classification in a manner not contemplated or desired by [CBP].
Royal Business Machines, Inc., et al. v. United States, 1 CIT 80, 87 (1980), 507 F. Supp. 1007, aff'd, 669 F.2d 692 (1982). Thus, the Commerce Department's antidumping scope determination applies to the merchandise named in that determination regardless of where CBP classifies that merchandise. Determinations regarding the scope of the antidumping duty order should be directed to the Commerce Department. The protestant had the ability to request a scope ruling under 19 CFR 351.225 from Commerce and failed to do so. Unlike the situation in Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002), in this instance it is facially unclear whether the completed swivel joints are included within the scope of the order. However, that is a question for the Commerce Department, not CBP. See Xerox, 289 F.3d at 794-795.
HOLDINGS:
At GRI 1, the instant steel swivel joints fall under heading 7307, HTSUSA. If they are stainless steel, they are classified 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.” If they are not made of stainless steel, they are classified under subheading 7307.99.5045, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other: Other: Of iron or nonalloy steel: Other” or under subheading 7307.99.5060, HTSUSA, as: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other: Other: Of alloy steel (except stainless steel).” The 2001 general rate of duty is 5 percent.
At GRI 1, the bearing modules fall under heading 8482, HTSUSA. They are classified as radial ball bearings according to the outside diameter of the outer race under subheadings 8482.10.5048, 8482.10.5052 or 8482.10.5056, HTSUSA, as appropriate, which provides for “Ball or roller bearings, and parts thereof: Ball bearings: Other: Radial bearings: Single row bearings: Other bearings, having an outside diameter of: . . . over 30 mm but not over 52 mm [or] . . . over 52 mm but not over 100 mm [or] . . . over 100 mm.” The 2001 rate of duty for these articles is 9 percent.
You should DENY the protest except to the extent that reclassification as indicated above results in a 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 Rulings Division