CLA-2:OT:RR:CTF:TCM H230154 HvB
Assistant Port Director – Trade
U.S. Customs and Border Protection
112 W. Stutsman Street
Pembina, North Dakota 58271-4102
ATTN: Gail Steinke-Hunter
Re: Application for Further Review of Protest No. 3401-12-100059; classification of power turbine engine parts
Dear Port Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 3401-12-100059, timely filed by Standard Aero Limited (“Standard Aero”). The protest concerns the classification of merchandise entered as “other washers” under heading 7318, Harmonized Tariff Schedule of the United States (HTSUS). Two samples were submitted for our review, and will be returned to you.
FACTS:
The article at issue, Part # 3023059, is made of steel and is used in the Rotor Assembly of a Pratt and Whitney PT6A turboprop gas turbine engine. It is eight sided and has a hole in the center that is 2.5 centimeters (cm) in diameter. Two of the sides are indentations that have the dimensions of 1.3 cm by ½ cm. One face of the article is flat and incorporates a round disc coated with an anti-galling substance and is intended to protect the Power Turbine Second Stage Disc. The opposite face features a thin walled flange that is approximately .5 cm in height. The Power Turbine shaft goes through the center of the flat side and then a nut is crimped into the flanged side.
Below are two pictures of the sample, with a picture of the flat side on the left:
Standard Aero states that the subject part is designed to prevent the nut (that is crimped to the flanged side) from rotating to ensure that Rotor Assembly remains balanced, while the gas turbine engine is in service. The article at issue has three design features, which enhance its anti-rotation purpose. The indentations of the subject part lock into the lugs of the PT Second Stage Disk and the article’s octagonal shape provides it with additional strength. Thirdly, the importer states that the thin walled flange enables the crimping of the nut to prevent the nut from rotating.
On October 24, 2011, Standard Aero entered the subject merchandise as “other washers” under subheading 7318.22.00, HTSUS, which provides for “Screws, bolts, nuts…washers (including spring washers) and similar articles of iron or steel: Non-threaded articles: Other Washers.” Shipping documents describe the article at issue as “Washer-sltd [slotted], pwr Turb shaft.” On December 22, 2011, U.S. Customs and Border Protection (“CBP”) issued a Request for Information (CBP Form 28) to Standard Aero, and requested samples of Part # 3023059. CBP also sent a request for additional information to the importer via email regarding to the article’s use on February 14, 2012. On February 22, 2012, the importer responded via email and indicated that the article is used in the Power Turbine Assembly of a turboprop gas turbine engine. On February 24, 2012, CBP proposed re-classification of the article in subheading 8411.91 HTSUS, the provision for parts of an aircraft turboprop gas turbine engine, via a Notice of Action. The Notice states the importer has twenty (20) days to respond before CBP takes such action. After consulting with a National Import Specialist via QUICS in March 2012, CBP issued an additional Notice of Action on April 4, 2012, which advised the importer that the washers had been reclassified in subheading 8411.91.90, HTSUS. Subsequently, CBP liquidated the merchandise on May 18, 2012.
The instant protest and AFR were timely filed on July 12, 2012.
ISSUE:
Whether the washers are classified in heading 7318.15.20, HTSUS, as “other washers”, and are therefore excluded from heading 8411, HTSUS, which covers “turbo-jets, turbo-propellers and other gas turbine engines, and parts thereof” as parts of general use.
LAW AND ANALYSIS:
Initially, we note that the subject matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on October 21, 2009, which was within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further review is properly accorded to the protest pursuant to 19 C.F.R. 174.24(a), because the decision against which the protest was filed is alleged to be inconsistent with CBP rulings on substantially similar merchandise. Specifically, Standard Aero cites to Headquarters Ruling Letter (“HQ”) 952879 (February 8, 1993), New York Ruling Letter (“NY”) R05154 (November 14, 2006), NY N036409 (August 29, 2008), and NY N105785 (May 24, 2010).
Classification under the HTSUS 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 based on 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. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System 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 at the international level. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The 2011 HTSUS provisions under consideration in this case are as follows:
7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel:
Non-threaded articles:
* * *
7318.22 Other washers:
8411 Turbojets, turbopropellers and other gas turbines, and parts thereof:
* * *
Parts:
8411.91 Of turbojets or propellers:
* * *
8411.91.90 Other:
The Notes to Section XV (which includes Chapter 73) provide, in relevant part:
This section does not cover:
…
(f) Articles of section XVI (machinery, mechanical appliances and electrical goods);
…
Throughout the tariff schedule, the expression “parts of general use” means:
Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals;
…
The Notes to Section XVI (which includes Chapter 84) provide, in relevant part:
This section does not cover:
…
(g) Parts of general use, as defined in note 2 to Section XV, of base metal (Section XV), or similar goods of plastics (chapter 39);
…
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:
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;
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.
* * *
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 73.18 reads, in pertinent part:
(E) Washers
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. They may be plain, cut, split (e.g., Grower’s spring washers), curved, cone shaped, etc.
…
EN 84.11, reads in pertinent part:
Turbo-Jets
A turbo-jet consists of a compressor, a combustion system, a turbine, and a nozzle, which is a convergent duct placed in the exhaust system. The hot pressurized gas exiting from the turbine is converted to a high velocity gas stream by the nozzle. The reaction of this gas stream acting on the engine provides the motive force which may be used to power aircraft. In its simplest form the compressor and turbine are accommodated on a single shaft. …
* * *
Protestant submits that the subject articles are classifiable under heading 7318, HTSUS, which provides for “washers” eo nomine, under Chapter 73 and Section XV, HTSUS. Note 1(f) to Section XV (which covers chapter 73), HTSUS, excludes “articles of Section XVI.” Note 1(g) to Section XVI (which covers chapter 84), HTSUS, excludes “parts of general use, as defined in note 2 to Section XV, of base metal.” It follows that, if the instant merchandise is properly classified as “parts of general use” under heading 7318, Note 1(g) to Section XVI precludes their classification under heading 8411. Therefore, CBP must first consider whether the instant merchandise is properly classified as a washer under heading 7318, HTSUS.
Ordinarily, use is not a criteria considered when determining whether merchandise is embraced within an eo nomine provision. J.E. Mamiye & Sons, Inc. v. United States, 509 F. Supp. 1268, 1274 (Cust. Ct. 1980); Pistorino & Co. v. United States, 599 F.2d 444 (C.C.P.A. 1979); F.W. Myers & Co. v. United States, 24 Cust. Ct. 178, 184-185, C.D. 1228 (1950). However, in United States v. Quon Quon Co., 46 C.C.P.A. 70 (1959), the Court of Customs and Patent Appeals stated:
Of all things most likely to help in the determination of the identity of a manufactured article, beyond the appearance factors of size, shape, construction and the like, use is of paramount importance. To hold otherwise would logically require the trial court to rule out evidence of what things actually are every time the collector thinks an article, as he sees it, is specifically named in the tariff act.
Quon Quon, 46 C.C.P.A. at 73.
The Quon Quon case has come to stand for the proposition that use may be considered in determining the identity of an eo nomine provision. Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also HQ H128496, dated March 11, 2011; HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995. See also HQ H236523, dated July 2, 2014. Moreover, the Court of Federal Appeals recently wrote, that “in certain circumstances”, use may be considered to construe an eo nomine provision. GRK Canada, Ltd. v. United States, 884 F. Supp. 2d. (Ct. Int’l Trade 2013), vacated, GRK Canada, Ltd. v. United States, 761 F. 3d 1354 (Fed. Cir. 2014), remanded, citing to Carl Zeiss, Inc. v United States, 195 F. 3d. 1375, 1379 (Fed. Cir. 1999).
Use is simply one of the factors to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp. 66, 72 (Ct. Int’l. Trade 1997); See also HQ 964444; HQ 957997. “The Court does not read the [Quon Quon] opinion to support the proposition that certain eo nomine provisions are in fact governed by use.” Myers, 969 F. Supp. at 72. See also HQ H236523 (July 2, 2014).
Heading 7318, HTSUS, covers a group of articles which is widely known in commerce as “fasteners.” The term “washer” is not defined in either the HTSUS or its legislative history. The meaning of a tariff term, a matter of statutory construction, presents a question of law. Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir. 1998). When, as in this case, a tariff term is not defined in either the HTSUS or its legislative history, "the term's correct meaning is its common meaning." Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod at 1576.
CBP has previously construed the term “washer.” In HQ 957103 (June 2, 1995), we found that a steel ring which had raised inner and outer circumferences in the form of lips was not a washer, citing to the EN for washer, finding that the subject rings functioned and looked like washers. In a decision concerning the classification of a piano felt washer (HQ 966913, dated July 7, 2004), we cited Webster’s New Collegiate Dictionary (1979) for the following definition of the term “washer”: 2. a flat thin ring or perforated plate used in joints or assemblies to ensure tightness, prevent leakage, or relieve friction. See also HQ 963569, dated May 23, 2002. Consistent with the dictionary definition, EN 73.18 explains 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. They may be plain, cut, split (e.g., Grower’s spring washers), curved, cone shaped, etc.” In addition, The McGraw-Hill Concise Encyclopedia of Science & Technology (2005) defines a “washer” as a “flattened ring-shaped device used to improve the tightness of a screw fastener”.
The submitted sample is made from steel and octagonal in shape. Although it has a wide hole in its center like a washer, it is not shaped like a washer as it is not a flat thin ring or a perforated plate. Rather, it is octagonal in shape. In addition, it has two other design features not typical to washers: the two indentations and the flanged wall. Together, these three features provides the article with additional strength and intended purpose, to prevent rotation. The indentations which are approximately 1.3 cm by ½ cm are of a specific design and use with lugs of the PT Second Stage disc. The thin walled flange is approximately .5 cm in height and it enables the crimping of a nut to prevent rotation. Thus, the article is not constructed like an ordinary washer. In electronic mail with this office, the Protestant confirmed that the instant merchandise is specially manufactured and constructed for the specific purpose to ensure that the Rotor Assembly of the gas turbine engine is balanced. As such, under Quon-Quon, when considering the article’s size, shape, construction and use, the instant part does not meet the definition of a “washer” under heading 7318, HTSUS.
Furthermore, we consulted the American Society of Mechanical Engineers (“ASME”) Standard B18.21.1-2009, “Washers: Helical Spring-Lock, Tooth Lock, and Plain Washers (Inch Series)” to determine whether the instant product meets the ASME’s standard for plain washers or tooth-lock washers. Table 7 of B18.21.1-2009 provides a picture of an external tooth lock washer:
Table 12, Id., provides a picture of a Type B Plain Washer:
The instant merchandise does not resemble the above diagrams, because its thin walled flanges clearly differentiates it from any of washers identified in B18.21.1-2009, the EN to 73.18, and the dictionary definitions cited, supra. Whereas the subject “washer” is designed to interface with a specific part that Protestant refers to as a “nut”, the ASME explains that the washer covered by this standard “are intended for general application.” Ibid, pages 8, 14. Thus, we disagree that the subject articles meets the common and commercial definition of a washer. It does not resemble or meet the terms of washers described in the lexicographic materials discussed above.
In support of its argument that the instant merchandise is a “washer,” Standard Aero cites to HQ 952879 (February 8, 1993), NY R05154 (November 16, 2006), NY N036408 (August 29, 2008), NY N105785 (May 24, 2010) and HQ H08021 (June 14, 2012). However, these rulings do not support Protestant’s argument, as explained below.
In HQ 952879, we classified a high pressure valve which was used to regulate pressure in a turbine engine in heading 8481, HTSUS, as a valve. In NY N036408, we classified hexagonal socket screws used to secure shaft sleeves and liners in marine propulsion systems. In the instant case, the subject merchandise are not “valves” or “screws” and thus, these rulings are distinguishable. The instant item does not meet the definition of a washer and is not used for various fastening applications on a gas turbine engine. Similarly, the instant merchandise does not resemble the beveled “steel rod end washer” which we classified in NY R105785, in heading 7318.22, HTSUS.
In NY R05154, we classified two items used in gas turbine engines, a double hex bolt and a cup washer. We wrote that the cup washer was used to keep the nut from loosening while in service and consisted of a 4.1mm round disc with a hole in the center. The double hex bolt was used in applications throughout the engine. Unlike the instant merchandise, the hex bolt was classifiable in heading 7318, HTSUS, as it met the definition of a bolt and was used for general application. Finally, notwithstanding the fact that the instant article is not a cup washer, our classification of the cup washer in subheading 8483.90, HTSUS, as a part of a gearing contradicts protestant’s argument that the subject articles are not classifiable as parts in heading 8411. Thus, NY R05154 is consistent with our conclusion that the subject articles are classifiable by Note 2(b) to Section XVI in heading 8411, HTSUS.
Furthermore, the subject merchandise is distinguishable from HQ H080821, dated June 14, 2012, in which we reconsidered NY N058237 (May 13, 2009). In NY N058237, we classified bolts that are used to join components within compressor shaft assembly in heading 8414 as parts of an air or gas compressor. In revoking NY N058237 and classifying the subject bolts in heading 7508, HTSUS, we noted that the bolts at issue met the definition of a bolt, “a pin or rod that is designed to hold things together or in place.” HQ H080821 is distinguishable because the instant merchandise are neither “bolts” nor are they classifiable in heading 7318, HTSUS, as washers, as we explained above.
Accordingly, the subject merchandise does not meet the standards and definitions for washers and is not classifiable as a “washer” in heading 7318, HTSUS. We therefore turn to heading 8411, under Section XVI, to the issue of whether the article is classifiable as a “part” under the HTSUS.
The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line cases, an imported item is not a part if it is “a separate and distinct commercial entity.” See also See also Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011).
The Power Turbine Shaft goes through the article at issue and has indentations and flanges which are designed to ensure that the PT Rotor Assembly is balanced. As such, it meets the HTSUS definition of “part”. It is an integral constituent part of the turboprop engine of the PTA aircraft. The article at issue serves to holds the nut and other parts in place that allow the turbine engine to operate as designed. Standard Aero states that the subject washer plays an essential role in the functioning of Power Turbine Rotor Assembly, which is critical to the operation of the gas turbine engine, in that the anti-rotation features of the washer provide added safety by ensuring that the PT Rotor Assembly is properly balanced. Thus, like the superchargers in Pompeo, the subject part, once installed, the part is “dedicated irrevocably for use” with the Pratt and Whitney PTA turboprop engine’s PT Rotor Assembly and PT Shaft. Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997), citing to Pompeo, 43 C.C.P.A. at 13. Thus, the gas turbine engine could not function without the subject part." Furthermore, the subject merchandise “is not a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779. It is specifically designed for use with the Power Turbine Rotor Assembly. Standard Aero has not provided evidence of any other use other than use with PTA turbojet engines.
The instant part is a constituent component part of the Power Turbine Rotor Assembly of a turbojet. Note 1(f) to Section XV precludes classification of articles of Section XVI in Section XV. Accordingly, by operation of Note 2(b) to Section XVI, it is classifiable in heading 8411, HTSUS, specifically in subheading 8411.91.90, as “Turbojets, turbopropellers and other gas turbines, and parts thereof: Parts: Of turbojets or turbopropellers: Other.”
HOLDING:
You are instructed to DENY the protest. By application of GRI 1 and Section XVI, Note 2(b), the subject merchandise is classified in heading 8411.91.90, HTSUS, which provides for “Turbojets, turbopropellers and other gas turbines, and parts thereof: Parts: Of turbojets or turbopropellers: Other.” At the times of entry, the column one, general rate of duty was Free.
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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the
CBP website located 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