CLA-2 OT:RR:CTF:CPM H282279 NCD
Center Director
Center of Excellence and Expertise for Machinery
U.S. Customs and Border Protection
109 Shiloh Dr., Suite 300
Laredo, TX 78045
Attn: Ted Rucki, Import Specialist
RE: Internal Advice Request; Classification of a branch pipe tee
Dear Center Director:
This is in response to a January 19, 2017 request by the Center of Excellence and Expertise for Machinery (“CEE”) for internal advice as to the proper classification of a branch pipe tee under the Harmonized Tariff Schedule of the United States (HTSUS). The CEE submitted its request following receipt of a April 5, 2016 request by Wabtec Corporation (“Wabtec”) that the CEE seek internal advice from our office pursuant to 19 C.F.R. §177.11(a) (“internal advice request”). In reaching the below determination as to the classification of the branch pipe tee, we have taken into consideration information provided and information set forth in Wabtec’s internal advice request; in a June 8, 2017 telephonic discussion between members of our office and representatives of Wabtec; and in Wabtec’s supplemental submission of June 12, 2017 (“supplemental submission”).
FACTS:
The subject branch pipe tee is composed predominantly or wholly of cast iron and consists of a short, continuous bore which varies in length, is curved and flanged at one end, and opens into a perpendicular, double-flanged bore at the other (See Figure below). Protrusions at the latter end house the flanges’ clearance holes and impart the object with a general “T” shape (See Figure 2 below). The article is uniquely designed for implementation into a railway emergency air brake system containing a continuous line brake pipe (“brake pipe”), which spans the length of several railway cars, as well as a series of vent valves installed in individual cars (See Figure 3 below). Specifically, the branch pipe tee is bolted at its “T”-shaped end to an assembly containing a flange, gasket, and swivel, the last of which is in turn welded to a segment of the brake pipe. At its opposite, curved end, the branch pipe tee is bolted directly to, and fully supports the weight of, the otherwise free-floating vent valve (See Figure 4).
Figure 1
Figure 2
Figure 3
Figure 4
In its internal advice request, Wabtec describes the role of the branch pipe tee within the emergency air brake system as follows:
Air from the train car’s continuous line brake pipe flows into a passage in the Branch Pipe Tee, whereupon the air is forced at a ninety-degree angle into a second passage in the Branch Pipe Tee. The diameter and profile of these passages helps to establish both the pressure and flow rate of the air moving through them. Thereafter, the air flows at the proper pressure from the branch Pipe Tee’s passage into the vent valve’s charging chamber. The air in the vent valve is subsequently discharged through the vent protection component. The resulting air pressure reduction in the vent valve “sets” or applies the rail car’s brakes.
Wabtec’s supplemental submission similarly states as follows:
The air in the emergency braking system flows through the piping, which is secured by the flange swivel seated in and assembled with the flange. Only thereafter does the air flow into the branch pipe tee, after which the air is directed into the vent valve at the proper pressure and vented.
Wabtec asserts that although it entered the branch pipe tees in heading 7307, HTSUS, the branch pipe tees are properly classified in heading 8481, HTSUS.
ISSUE:
Whether the subject branch pipe tee is properly classified in heading 7307, HTSUS, as pipe fittings of iron, in heading 8481, HTSUS, as parts of valves, or in heading 8607, HTSUS, as parts of railway rolling stock.
LAW AND ANALYSIS:
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.
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 HTSUS provisions under consideration in this case are as follows:
7307 Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel
8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof
8607 Parts of railway or tramway or locomotives or rolling stock
As a preliminary matter, neither heading 8481, HTSUS, nor heading 8607, HTSUS, applies to “parts of general use” as defined in Note 2 to Section XV. See Section XVII, Note 2(b), HTSUS (“The expressions “parts” and “parts and accessories” do not apply to…Parts of general use, as defined in note 2 to Section XV, of base metal...”); Section XVI, Note 1(g), HTSUS (“This section does not cover…Parts of general use, as defined in note 2 to Section XV, of base metal...”). Note 2(a) to Section XV in turn provides that “[t]hroughout the tariff schedule, the expression “parts of general use” means…Articles of heading 7307…” Consequently, if the subject branch pipe tees fall within the scope of heading 7307, HTSUS, they cannot be classified in heading 8481 or heading 8607, HTSUS. See Container Store v. United States, 145 F. Supp. 3d 1331, 1345-47 (Ct. Int’l Trade 2016) (holding that where merchandise falls within a heading pertaining to “parts of general use” as defined by Note 2(a) to Section XV, it cannot be classified as a “part” of a competing provision).
Heading 7307 applies to pipe fittings of iron or steel. EN 73.07 states, in relevant 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).
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.
The heading excludes:
* * *
(e) Fittings equipped with taps, cocks, valves, etc. (heading 84.81).
The term “pipe fitting” is not defined in the HTSUS. As such, it must be construed in accordance with its common meaning, which may be ascertained by reference to “standard lexicographic and scientific authorities” and to the pertinent ENs. See GRK Can., Ltd. v. United States, 761 F.3d 1354, 1357 (Fed. Cir. 2014). According to various technical references and EN 73.07 alike, pipe fittings denote articles used to connect pipes to each other or to wholly separate apparatus. See Mitsubishi Int’l Corp. v. United States, 78 Cust. Ct. 4, 19 (Cust. Ct. 1977) and L & B Prods. Corp. v. United States, 66 Cust. Ct. 424, 429 (Cust. Ct. 1971) (both citing Audels Mechanical Dictionary, Knight’s New American Mechanical Dictionary, and The Dictionary of Mechanical Engineering in defining “pipe fitting”); see also GRK Canada, Ltd. v. United States, 761 F.3d 1354, 1358 (Fed. Cir. 2014) (“Although an eo nomine provision generally describes the merchandise by name, not by use, such a provision may be limited by use when the name itself inherently suggests a type of use.”). Those authorities further indicate that heading 7307 applies, inter alia, to tees, reducers, and “bends”. See EN 73.07; Mitsubishi, 78 Cust. Ct. at 19; and L & B Prods. Corp. v. United States, 66 Cust. Ct. at 429. Common among those exemplars is that all three allow fluid to flow continuously through their apertures while simultaneously affecting the flow of the fluid in some manner. Specifically, pipe tees combine or split fluid streams, reducers increase or reduce pressure on the fluid, and bends change the directional flow of the fluid. See Mitsubishi, 78 Cust. Ct. at 19-20; see also LeMans Corp. v. United States, 660 F.3d 1311, 1320-21 (Fed. Cir. 2011) (holding that use of EN examples to define the scope of a tariff term is permissible).
Here, the subject branch pipe tees are affixed directly to the vent valves at one end, and at the other to flange assemblies that are in turn fused to the brake pipe ends. To this extent, the branch pipe tees provide passages from the bore of the brake pipe to the mouths of the vent valves situated in the individual railway cars. Wabtec concedes as much insofar as it affirms, both in its internal advice request and in its supplemental submission, that air from the brake pipe flows into the branch pipe tee and ultimately into the vent valve’s charging chamber. The branch pipe tees can therefore be accurately described as “connecting” the bore of a tube to a separate apparatus within the meaning of “pipe fitting” as that term is understood in case law and EN 73.07 alike. Moreover, the branch pipe tees take the combined form of tees, bends, and reducers, all of which are identified in case law and EN 73.07 as pipe fittings, insofar as they combine fluid streams from the brake pipe segments at their “T”-shaped ends, alter the directional flow of air at their curved ends, and incorporate aperture segments of varying diameters that alternately decrease or increase the flow of air through their apertures. That the article can be considered a “tee” is further reinforced by its commercial designation as such. See Wabtec Corp., Operation & Maintenance Instruction: #8 VENT VALVE with BRANCH PIPE TEE, Part No. 579076 (Jan. 2001). By all indications, therefore, the subject branch pipe tees are within the scope of heading 7307 and are properly classified there.
In contesting this classification, Wabtec contends that the branch pipe tee cannot be considered a pipe fitting because it does not make physical contact with the ends of the brake pipe. Instead, Wabtec’s argument goes, the branch pipe tee connects only to the intermediate assemblies of flanges, gaskets, and swivels, the last of which attaches to the pipe and therefore constitutes the sole pipe fitting. We find this interpretation of “pipe fitting”, i.e., as comprising only those articles which connect directly to pipes, to be excessively restrictive. As discussed above, pipe fittings encompass articles that create a channel through which fluid from offset pipes and/or apparatus can flow. There is no indication in EN 73.07 or elsewhere that in creating this connection, pipe fittings must physically attach directly to the pipe end. In fact, CBP has specifically ruled that a pipe fitting may be combined with other articles, including intermediate pipe fittings, to form a continuous channel between bores. See Headquarters Ruling Letter (“HQ”) 965939, dated July 16, 2003 (determining that heading 7307 applies to “pipe fitting nuts” that “serve to connect the head and the tail components which are in turn connected to the two pipes”). In view of this, we are not convinced that the branch pipe tees are excluded from heading 7307 merely because, by virtue of design choice, there happens to be an intermediate assembly between the tee and brake pipe end.
We are equally unconvinced of Wabtec’s related contention that the branch pipe tee cannot be considered a “mere” pipe fitting because its “actual” functions include regulating and directing air flow from the brake pipe to the vent valve and securing the latter within the emergency brake system. While the branch pipe tee may perform these functions in addition to establishing a connection between the brake pipe and vent valve, they do not somehow render the article something other than a pipe fitting for classification purposes. In fact, the directing of air from the brake pipe to the vent valve is entirely predicated on the branch pipe’s joinder of these two components, as the air would otherwise lack any route through which it could be directed. Any distinctions between connecting and directing are therefore arbitrary in this context. Similarly, the connection formed by the branch pipe tee is a prerequisite for any regulation of air flowing through the article. Moreover, as discussed above, the enumeration of reducers among the exemplars set forth in EN 73.07 indicates that pipe fittings may decrease, increase, or otherwise regulate the rate of fluid flow through their bores. As to the branch pipe tee’s securing of the vent valve, there is nothing in EN 73.07, case law, CBP precedent, or elsewhere to suggest that pipe fittings may not lend weight-bearing support and stability to the pipes or apparatus to which they are attached. In effect, none of the additional functions performed by the branch pipe tees preclude their treatment as pipe fittings for purposes of heading 7307.
Wabtec also contends that the branch pipe tees cannot be considered pipe fittings because their design features do not align exactly with the descriptions and exemplars of pipe fittings set forth in EN 73.07. Wabtec specifically contends that the branch pipe tees are not true “tees” because they incorporate a bend, and that the means by which they are affixed to the brake pipes and vent valves does not fall within the connection types enumerated in the EN. Again, we find that Wabtec adopts an unduly restrictive interpretation of the relevant texts in construing “pipe fitting”. The exemplars in EN 73.07 are, by definition, non-exclusive examples of articles that qualify as pipe fittings, rather than an exhaustive list of permissible pipe fittings. There is no indication, in EN 73.07 or elsewhere, that an article incorporating aspects of various exemplars would not also qualify as a pipe fitting so long as it satisfies the above-discussed definitional requirements of the term. There is likewise no indication that pipe fittings must necessarily be screwed to, welded to, or inserted into the bores of pipes or apparatus. In fact, the inclusion of flanges among the exemplars of pipe fittings indicates that the bolting of non-threaded fittings to pipes and apparatus is perfectly permissible within the scope of heading 7307.
Because the branch pipe tees are classified in heading 7307, HTSUS, they qualify as parts of general use within the meaning of Note 2 to Section XV, and are accordingly excluded from heading 8481, HTSUS, by application of Note 1(g) to Section XVI, and from heading 8607, HTSUS, by application of Note 2(b) to Section XVII. Wabtec insinuates that on account of its “highly specialized use” and “unique and non-standardized components,” the branch pipe tee cannot be considered a part of general use. However, as Wabtec even concedes, the degree to which an article is physically unique and/or tailored to a specialized use is not determinative of whether it qualifies as a part of general use. See Container Store, 145 F. Supp. 3d at 1347 (“Parts of general use are to be classified in their appropriate eo nomine provision. This rule stands even if the parts are ‘specialized’ for particular types of goods.”); Honda of Am. Mfg. v. United States, 607 F.3d 771, 774 (Fed. Cir. 2010) (“An article's specialization for vehicles does not preclude its classification as a part of general use.”).
Nor is classification outside of heading 7307, specifically in heading 8481, HTSUS, supported by the CBP precedent and EN 73.07 excerpt cited by Wabtec. While EN 73.07 states that “fittings equipped with valves” are excluded from heading 7307, the exclusion is inapplicable here because the branch pipe tees were not even attached to the vent valves at entry. See Rollerblade, Inc. v. United States, 112 F.3d 481, 487 (Fed. Cir. 1997) (“An item must be evaluated for tariff purposes in its condition as imported.”). Moreover, the cases cited by Wabtec, including HQ H078778, dated August 5, 2010, HQ 956743, dated January 24, 1995, New York Ruling (“NY”) N266169, dated July 17, 2015, NY N218715, dated June 11, 2012, NY N125121 dated October 14, 2010, NY N024381, dated March 18, 2008, NY N011182, dated June 11, 2007, NY M82071, dated May 5, 2006, and NY L86214, dated August 1, 2005, are all distinguishable from the instant case or otherwise do not support Wabtec’s claimed classification. In HQ H078778, CBP did not even address the applicability of heading 7307, despite its acknowledgement that the articles at issue had been classified there at entry, and ultimately rejected heading 8481 as a possible classification. In HQ 956743, the fittings at issue were used to connect items other than pipe and were excluded from heading 7307 on those grounds. Similarly, the articles at issue NY N024381 and NY N125121 were used, respectively, to affix lighting fixtures to a pipe baton and to connect a turbocharger to a tractor engine, and as such, could not be considered fittings for pipes. The articles at issue in NY N218715, NY N011182, and NY L86214 incorporated valves that rendered them classifiable in heading 8481, HTSUS, rather than in heading 7307. Likewise, the exhaust assemblies at issue in NY N266169 were classified in heading 8421, HTSUS, on account of their catalytic converter components.
We are reviewing NY M82071, in which Taco Twin Tees were classified in headings 7314 and 7326, HTSUS. However, because Wabtec does not claim classification in either heading 7314 or heading 7326, and because the ruling does not support Wabtec’s claimed classification of heading 8481, the ruling is inapplicable in the instant matter. In fact, given the myriad indicia that the branch pipe tees are products of heading 7307, the sound administration of Customs laws is best ensured by our classification of the merchandise in heading 7307. In conclusion, because the branch pipe tees clearly fall within the scope of heading 7307, and consequently cannot be classified in heading 8481 or 8607, HTSUS, they are properly classified in heading 7307, HTSUS.
HOLDING:
In accordance with the above analysis, the branch pipe tees are classified in heading 7307, HTSUS. They are specifically classified in subheading 7307.11.0060, HTSUSA (Annotated), which provides for: “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Cast fittings: Of nonmalleable cast iron: Other.” The column one, general rate of duty is 4.8 percent 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 on the internet at www.usitc.gov/tata/hts/.
Additionally, please note that the subject branch pipe tees may fall within the scope of antidumping orders on non-malleable cast iron pipe fittings from the People’s Republic of China. See A-570-875, 68 Fed. Reg. 16765 (April 7, 2003). We highly recommend that the importer obtain a scope ruling from the U.S. Department of Commerce, International Trade Administration (ITA), to determine whether the branch pipe tees fall within the scope of the order. The importer may contact the ITA at http://www.trade.gov/ia/ (click on “Contact Us”). A list of current AD/CVD cases is available at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and AD/CVD deposit and liquidation messages can be searched using the AD/CVD Search tool at http://addcvd.cbp.gov/
Sixty days from the date of this decision, the Office of International Trade, Regulations and Rulings, will make this decision available for CBP personnel, and to the public on the CBP Home Page at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division