OT:RR:CTF:CPMM H266146 RRB
Center Director
Automotive and Aerospace Center of Excellence and Expertise
U.S. Customs and Border Protection
477 Michigan Avenue, Rm. 281
Detroit, MI 48226
RE: Application for Further Review of Protest No. 3801-14-150024; Tariff classification of reinforced silicone shapes
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3801-14-150024, timely filed on May 19, 2015, on behalf of FlexFab, LLC (“Protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of reinforced silicone shapes. In its submission, Protestant requested a meeting with CBP in the event we disagree with its proffered classification of the merchandise. We reached out both via telephone and email, dated June 25, 2020, to the protestant, and also to the protestant’s broker several times, most recently on July 21, 2020, without success. We therefore consider the request withdrawn and our decision on the matter follows.
FACTS:
The protested merchandise consists of various silicone hollow shapes of different shapes and lengths that the Protestant asserts are “hoses.” The silicone is reinforced with textile and some are also encircled by metal wire rings. Almost all of the part numbers underlying the protest are under 12 inches in length. The protested merchandise are used in the engine compartment of automotive vehicles and trucks and serve as connections from one apparatus to another in order to facilitate the flow of liquids and gases. While the Protestant asserts that the units are hoses, the Port of Detroit (“Port”) notes that the Protestant’s catalogue and invoices identify the subject merchandise as “hoses, elbows, sleeves, charged air connector couplers, reducers,” and other items.
The protested merchandise consists of four (4) entries that were entered at the Port on September 9, 2014, September 19, 2014, and September 31, 2014, and were liquidated on November 28, 2014, under subheading 3917.40.00, HTSUS (2014) as “Tubes, pipes and hoses and fittings therefor (for example, joints, elbow, flanges), of plastics: Fittings: Other,” at a duty rate of 5.3% ad valorem. The Protestant filed this Protest and AFR on May 19, 2015, asserting that the subject merchandise is properly classified under subheading 3917.39.00, HTSUS (2014), as “Tubes, pipes and hoses and fittings therefor (for example, joints, elbow, flanges), of plastics: Other tubes pipes and hoses: Other: Other: Other.”
ISSUE:
Whether various reinforced silicone shapes are classified under subheading 3917.39.00, HTSUS (2014), as “other tubes pipes and hoses” or under subheading 3917.40.00, HTSUS (2014), as “fittings.”
LAW AND ANALYSIS
The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3).
Further Review of Protest Number 3801-14-150024 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
Classification under the HTSUS 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The 2014 HTSUS provisions under consideration as follows:
3917 Tubes, pipes and hoses and fittings therefor (for example, joints, elbows,
flanges), of plastics:
Other tubes, pipes and hoses:
3917.39.00 Other:
Other:
3917.39.0050 Other. . .
3917.40.00 Fittings:
3917.40.0090 Other. . .
* * * *
Note 8 to chapter 39 states, in pertinent part:
8. For the purposes of heading 3917, the expression “tubes, pipes and hoses” means hollow products, whether semimanufactures or finished products, of a kind generally used for conveying, conducting or distributing gases or liquids (for example, ribbed garden hose, perforated tubes). This expression includes sausage casings and other lay-flat tubing. However, except for the last mentioned, those having an internal cross section other than round, oval rectangular (in which the length does not exceed 1.5 times the width) or in the shape of a regular polygon are not to be regarded as tubes, pipes and hoses, but as profile shapes.
* * * *
The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to 39.17 states, in pertinent part:
This heading also includes fittings of plastics for tubes, pipes and hoses (for example, joints, elbows, flanges).
* * * *
There is no dispute at the four digit level that the protested merchandise is classified in heading 3917, HTSUS, as “tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics.” Instead, the dispute arises at the six digit level as to whether or not the protested merchandise are “other tubes, pipes and hoses” of subheading 3917.39, HTSUS, or “fittings” of subheading 3917.40, HTSUS.
Both the heading language in heading 3917 and the ENs to 39.17 identify joints, elbows and flanges as types of fittings. Furthermore, the protested merchandise is substantially similar to that addressed in New York (“NY”) Ruling Letter N251994, dated April 25, 2014. There, we classified four different items comprised of textile-reinforced silicone used as connectors between two pieces of engine equipment as fittings of subheading 3917.40.00, HTSUS.
Moreover, even though chapter 39 provides little discussion of fittings of plastic, we look to the uniform usage rule of statutory construction for guidance. Under this rule, terms ordinarily have the same meaning throughout the statute, unless there is such variation in connection in which the words are used. See, e.g., Gen. Dynamics Land Syst. V. Cline, 540 U.S. 581, 591-96 (2004). For example, heading 7307, HTSUS, describes pipe fittings of iron or steel (e.g., couplings, elbows, sleeves). The ENs to 73.07 identify fittings as being “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.” Based on the shapes and constructions of the protested merchandise, which the Protestant’s own catalogue and invoices describe as hoses, elbows, sleeves, charged air connector couplers, etc., and which serve as connections from one apparatus to another to facilitate the flow of liquids and gases, it is clear that these items are used as fittings described in the ENs to 73.07.
Moreover, the classification of the protested merchandise as fittings of subheading 3917.40, HTSUS, is consistent with industry and common definitions for fittings. Pipe fitting is defined in Collins English Dictionary as “a coupling, elbow, etc. used to connect sections of pipe.” See Collins English Dictionary, https://www.collinsdictionary.com/us/dictionary/english/pipe-fitting (last visited June 11, 2020). Merriam-Webster Dictionary defines a pipe fitting as “a piece (such as a coupling or elbow) used to connect pipes or as accessory to a pipe.” See Merriam-Webster, https://www.merriam-webster.com/dictionary/pipe%20fitting (last visited June 11, 2020). In Mitsubishi Int’l. Corp. v. United States, 78 Cust. Ct. 4, 35, C.D. 4686 (1977), the court relied on a definition from Audel’s Mechanical Dictionary: “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. . .” As set forth in this definition of a pipe fitting, each of the protested merchandise also functions to alter the direction of flow of gases and is a fitting based on its shape and function.
Furthermore, in HQ 951940, dated July 31, 1992, which examined the classification of steel pipe fittings, we stated that “[i]nformation made available to us indicates that there is uniformity in the plumbing trade that cut-to-length steel pipe sections, whether threaded or not, up to 12 inches in length, are regarded as fittings and not tubes or pipes. However, there is no consensus in the industry on the status of pipe sections longer than 12 inches.” The Port concluded that based on the decision in HQ 951940, CBP has considered lengths of hoses/tubes/pipes that measure up to 12 inches in length as fittings. While HQ 951940 addresses metal pipes and fittings in the plumbing trade, we do not have any information suggesting that tubes, pipes, and fittings of plastics should be treated any differently.
Because each of the protested items under 12 inches in length meets the various definitions of “fittings” by shape and function, and many of the items, such as elbows, are specifically named in the language of headings 3917 and 7307, HTSUS, we find that the protested merchandise are fittings of plastic, classifiable under subheading 3917.40.00, HTSUS (2014). As for the remaining items that exceed 12 inches in length, we believe that these items are also fittings. None of the parts that exceed 12 inches in length are straight tubes, and each of them serve as connections from one apparatus to another while altering the direction of flow of gases and liquids. Therefore, we find that due to their shape and how they are used, all of the protested merchandise are fittings under subheading 3917.40.00, HTSUSA (2014).
The Protestant asserts that the subject merchandise are “hoses” that should be classified as entered under subheading 3917.39.0050, HTSUSA. The Protestant first argues that “a hose is a hose” regardless of length, and that neither the HTS chapter/section notes, nor the ENs to the HTS, mention size or length requirements for a hose to be considered as anything other than a hose. The Protestant further argues that CBP did not correctly apply the GRIs in classifying the protested merchandise.
As explained above, we disagree that “a hose is a hose, regardless of length”. Commercially, fittings are specific articles of commerce that, on the surface, meet the definition of hoses in note 8 to chapter 39. They are hollow shapes through which liquid flows. They are, however, much more than that. They are particular shapes known as fittings that connect two lengths of hose or pipe. In fact, this statement contradicts the Protestant’s second argument that CBP did not correctly apply the GRIs. CBP classified the protested merchandise, consisting of sleeves, couplers, reducers, and many other shapes that are fittings by their very nature—and not hoses—under GRI 1. However, if the Protestant’s statement that “a hose is a hose, regardless of length” were correct, then presumably, no item could be classified as a fitting in subheading 3917.40, HTSUS. This argument suggests that everything is a hose and nothing is a fitting.
In fact, protestant’s assertion that once a subheading describes the good, subsequent subheadings would not be considered, is illogical. The existence of GRI 3(a), which provides that the most specific description shall be preferred to headings providing a more general description, proves otherwise. Under GRI 3(a), if an article is wholly described by two or more provisions, the more specific provision is its classification. Therefore, even if subheading 3917.3 described the good as a hose, the merchandise would be classified more specifically as a fitting under subheading 3917.4, HTSUS. However, the merchandise is not commercially a hose at all and hence, pursuant to GRI 1 and 6, the protested merchandise is properly classified in subheading 3917.40.00, HTSUS (2014).
HOLDING:
By application of GRIs 1and 6, the subject reinforced silicone shapes are classified in heading 3917, HTSUS, and specifically in subheading 3917.40.0090, HTSUSA (Annotated) (2014), which provides for “Tubes, pipes and hoses and fittings therefor (for example, joints, elbow, flanges), of plastics: Fittings: Other.” The column one, general rate of duty at the time of entry was 5.3% ad valorem.
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 at https://hts.usitc.gov/current.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division