CLA-2 OT:RR:CTF:EMAIN H329895 PF
Center Director
Industrial & Manufacturing Materials Center of Excellence and Expertise
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111
Attn: Charles Ho, Import Specialist
RE: Protest and Application for Further Review No: 1512-22-100833; Classification of Platinum Bushings
Dear Center Director:
The following is our decision as to Protest and Application for Further Review No. 1512-22-100833, which was filed on August 23, 2022, on behalf of Mafic USA, LLC (“protestant”). The protest pertains to the classification of platinum bushings (“subject merchandise”) under the Harmonized Tariff Schedule of the United States (“HTSUS”).
The subject merchandise was entered by protestant between April 30, 2021 and July 7, 2021. U.S. Customs and Border Protection (“CBP”) liquidated the entries between February 25, 2022 and May 27, 2022. On August 23, 2022, protestant filed a protest and AFR regarding the tariff classification of the subject merchandise and claimed that the correct classification of the subject merchandise should be in heading 8479, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof.” CBP liquidated the entries under heading 7115, HTSUS, which provides for “Other articles of precious metal or of metal clad with precious metal.”
FACTS:
The subject bushing is a precious metal block of platinum/rhodium used in basalt fiber production. Each bushing contains hundreds of tiny orifices or “tips” through which basalt lava flows and is extruded into filaments. The bushing is positioned within a “bushing well module”, which consists of a frame and electrical components. Neither the bushing nor the bushing well performs a mechanical function; they remain static. The bushing well module does not act on anything -- it applies no force or other action to push or pull the basalt lava through the tips or orifices of the bushing. Rather, the bushing and the bushing well act like a conduit or funnel for the lava, which flows from the furnace to the winder. Neither the well nor the bushing have operating parts that move, and neither incorporate a mechanical device to cause the lava to move to the winder. In sum, the bushing well does not utilize, apply, or modify energy or force, or transmit motion.
ISSUE:
Whether the subject merchandise is classified in heading 7115, HTSUS, as “other articles of precious metal,” or in heading 8479, HTSUS, as “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter.”
LAW AND ANALYSIS:
Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 1512-22-100833 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.
Merchandise imported into the United States is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSRIs”). The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 GRIs 2 through 6 may then be applied in order.
The 2021 HTSUS provisions under consideration in this case is as follows:
7115 Other articles of precious metal or of metal clad with precious metal
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof
Note 3(K) to Chapter 71, HTSUS, provides that Chapter 71 does not cover:
[M]achinery, mechanical appliances or electrical goods, or parts thereof, of section XVI….
Note 2 to Section XVI, HTSUS, provides that: Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: (a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; (b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;
(c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate, or failing that, in heading 8487 or 8548.
In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 7115, HTSUS, states the following, in relevant part: This heading covers all articles wholly or partly of precious metal or metal clad with precious metal not constituting jewellery, unfinished or incomplete articles of jewellery or parts of jewellery (heading 71.13) or goldsmiths’ or silversmiths’ wares, unfinished or incomplete articles of goldsmiths’ or silversmiths’ wares or parts thereof (heading 71.14), and not excluded under the provisions of Note 2(A) or 3 to this Chapter.
The EN to heading 8479, HTSUS, provides, in pertinent part:
This heading is restricted to machinery having individual functions which:
Is not excluded from this Chapter by the operation of any Section or Chapter Note; and
Is not covered more specifically by a heading in any other Chapter of the Nomenclature; and
Cannot be classified in any other particular heading of this Chapter since:
No other heading covers it by reference to its method of functioning, description or type; and
No other heading covers it by reference to its use or industry in which it is employed; or
It could fall equally well into two (or more) other such headings (general purpose machine).
The machinery of this heading is distinguished from the parts of machinery, etc., that fall to be classified in accordance with the general provisions concerning parts, by the fact that it has individual functions.
For this purpose the following are to be regarded as having “individual functions”: Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance.
The Protestant claims that the subject bushing is a part of the bushing well that carries out a specific individual function, specifically, the conversion of basalt lava to basalt fiber by extrusion and that this function is not specified or included elsewhere in Chapter 84. The Protestant further contends that the bushing is classified in heading 8479, HTSUS. Note 1(K) to Chapter 71 states that the chapter does not cover goods of Section XVI, which includes Chapter 84. Thus, if the subject bushing is classifiable in Chapter 84, and specifically heading 8479, HTSUS, it cannot be classified in heading 7115, HTSUS. Accordingly, we begin by examining whether the bushing is classified as a part of subheading 8479.90.
However, to classify an article (in this case the bushing) in subheading 8479.90 as a “part” of an article of heading 8479, we must first, as a threshold matter, confirm that the principal article (in this case the bushing well module) is classified under heading 8479, HTSUS.
The bushing well module is not a machine or mechanical appliance of Chapter 84, HTSUS. As the tariff term “machine” is not defined in the HTSUS, both CBP and the courts look to its common meaning, which is presumed to be the same as its commercial meaning. See Headquarters Ruling (“HQ”) H250136, dated January 28, 2015; Mita Copystar Am. v. US, 21 F.3d 1079, 1082 (Fed. Cir. 1994). In H250136, CBP applied the following dictionary definition of “machine” adopted by the U.S. Court of Customs and Patent Appeals (CCPA) (predecessor to the U.S. Court of Appeals for the Federal Circuit), in United States v. Guth Stern & Co., Inc., 21 C.C.P.A. 246 (1933):
Popularly and in the wider mechanical sense, a machine is a more or less complex combination of mechanical parts, as levers, cog and sprocket wheels, pulleys, shafts, and spindles, ropes, chains, and bands, cams and other turning and sliding pieces, springs, confined fluids, etc., together with the framework and fastenings supporting and connecting them, as when it is designed to operate upon material to change it in some preconceived and definite manner, to lift or transport loads, etc. Id. at 248.
Moreover, CBP determined that the CCPA’s definition was consistent with dictionary definitions of the term “machine.” H250136, supra. The Merriam-Webster Online Dictionary (11th ed. 2014), available at www.merriam-webster.com, defines machine as “a piece of equipment with moving parts that does work when it is given power from electricity, gasoline, etc.” The Macmillan Dictionary (Macmillan Publisher Ltd. 2009 –2014), available at www.macmillandictionary.com, defines machine as “a piece of equipment that does a particular job by using electricity, steam, gas, etc.” H250136, supra.
The bushing well module is not a machine or mechanical appliance performing an individual function. It employs no moving, mechanical parts and does not “operate upon” or “work” a material or other object by moving it or otherwise exerting some force on such material or object. Protestant claims that “the main purpose of the bushing and bushing well is the mechanical process of extruding basalt fiber from basalt lava.” However, neither the bushing nor the bushing well perform this mechanical function. They remain static. The bushing well module does not act on anything -- it applies no force or other action to push or pull the basalt lava through the tips or orifices of the bushing. Rather, the bushing and the bushing well act like a conduit or funnel for the lava, which flows from the furnace to the winder. Neither the well nor the bushing have operating parts which move, and neither incorporate a mechanical device to cause the lava to move to the winder. In sum, the bushing well does not utilize, apply, or modify energy or force, or transmit motion.
The Protestant also contends that the bushing well performs a similar “extrusion” process than other extrusion machines, such as those of HTSUS headings 8477 (extrusion of plastic or rubber), 8462 (extrusion of metal), 8444/8448 (extrusion of man-made fibers), and 8475 (extrusion of quartz fibers). However, the bushing well is not a machine or mechanical appliance akin to the cited extrusion machines. The bushing wells are not akin to heading 8477 extrusion “pullers” at issue in HQ 951859, dated August 4, 1992, that “maintain the speed of the extrudate as it moves through the downstream equipment.” They are not akin to the heading 8462 extrusion press automatic stretchers at issue in HQ 965790, dated October 25, 2002, nor are they like the spinning/drawing/winding machine at issue in HQ 960910, dated February 24, 1999, (machine comprised of extruder, manifold, spinning head, spinning pump drive, spinning pump, spin pack, quenching chamber, interfloor tube, aspirator block, and winder). Moreover, they are not similar in function to the heat-set quartz drawing machine at issue in HQ 088236, dated July 3, 1991, that was comprised of a gas burner system, start-up system, godet system (providing constant filament drawing speed and a controlled supply of the yarn), package take-up system, and process control (described in New York Ruling (“NY”) 854024, dated July 11, 1990). Because the bushing wells are not extrusion machines and have no mechanical functions, the subject bushings cannot be considered a part of a machine of 8479.
Because the bushing is not an article of heading 84, it is not excluded from Chapter 71, HTSUS. Heading 7115, HTSUS, provides for other articles of precious metal. Specifically, Note 1 (b) of Chapter 71, HTSUS, provides that all articles consisting wholly or partly, of precious metal or of metal clad with precious metal are to be classified in Chapter 71. Note 4 (a) of Chapter 71, HTSUS, defines “precious metal” as silver, gold and platinum. Legal Note 4 (b) of Chapter 71, HTSUS, defines the term “platinum” to include not only the element of platinum but also iridium, osmium, palladium, rhodium, and ruthenium, all of which make up the element of platinum. Here the subject bushing is described as a precious metal block of platinum/rhodium. Because the bushing is made from alloys of platinum with rhodium, it is classified in subheading 7115.90.60, HTSUS, which provides for “other articles of precious metal or of metal clad with precious metal: other: other: other.” Our decision is consistent with NY N295867, dated May 2, 2018, where we classified a platinum/rhodium bushing in subheading 7115.90.60, HTSUS.
HOLDING:
Pursuant to GRIs 1 (Notes 1 and 4 to Chapter 71) and 6, the subject merchandise is classified in heading 7115, HTSUS, and specifically subheading 7115.90.60, HTSUS, which provides for “Other articles of precious metal or of metal clad with precious metal: other: other: other.” The 2021 column one, general rate of duty is 4 percent ad valorem.
The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively.
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.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division