OT:RR:CTF:CPMMA H316380 AJK
Base Metals Center of Excellence and Expertise
U.S. Customs and Border Protection
2350 N. Sam Houston Pkwy E. #900
Houston, TX 77032-3100
Attn: Craig A. Callies, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 2704-20-141406; Classification of Torque Beams
Dear Center Director,
This is in reply to the Application for Further Review (AFR) of Protest No. 2704-20-141406, timely filed on August 21, 2020, by Miller Proctor Law PLLC, on behalf of Unimacts Global, LLC (Protestant). This AFR contests U.S. Customs and Border Protection's (CBP) classification of torque beams in subheading 7308.90.95, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel: Other: Other: Other."
The Protestant has requested that certain information submitted in connection with this AFR request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets in the protestant's revised submission, dated May 18, 2021, and Exhibits A and B to this AFR request, forwarded to our office, will not be released to the public.
The subject torque beams are welded, cut-to-length octagonally-shaped tubes that are made from either hot-dipped galvanized steel or pregalvanized steel. They have not been drilled, bent or notched. They are imported in two conditions: (1) with specially-shaped couplers that are welded at each end of the torque beams; or (2) with polyethylene end caps, instead of the couplers. The torque beams are used in a single axis solar panel tracking system that generates power in utility scale power plants. They rotate the solar panels by transmitting rotary motion from the driveline and gear system, which are driven by a motor. Between the torque beams and the solar panels are specially designed clamps that are bolted to the solar panel module. The motion of the torque beams allows the solar panels to follow the movement of the sun throughout the day, maximizing each solar panel's exposure to the sun. They are imported alone (i.e., not with the complete solar panel tracking system) and are ready for installation at the time of importation without further processing.
The protested merchandise covers ten entries, entered between October 22, 2018, and March 9, 2019, in subheading 7308.90.95, HTSUS. In accordance with Section 301 of the Trade Act of 1974, the protested entries were subject to additional duties of 25 percent ad valorem under the secondary tariff number of subheading 9903.88.02, HTSUS. See 83 Fed. Reg. 47974 (Sept. 21, 2018). All ten entries were liquidated on April 21, 2020, as entered. Protestant now claims that the merchandise is classified in heading 8483, HTSUS, as other transmission shafts.
Whether the torque beams are classified in heading 7306, HTSUS, as other tubes; heading 7308, HTSUS, as metal structures; or heading 8483, HTSUS, as other transmission shafts?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See 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)). Further review of Protest No. 2704-20-141406 is properly accorded pursuant to 19 C.F.R. 174.24(b) because the decision against which the protest was filed is alleged to involves questions of law or fact that has not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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. In this case, the 2018 and 2019 HTSUS headings under consideration are as follows:
7306 Other tubes, pipes and hollow profiles (for example, open seamed or welded, riveted or similarly closed), of iron or steel
7308 Structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel
8483 Transmission shafts (including camshafts and crankshafts) and cranks; bearing housings, housed bearings and plain shaft bearings; gears and gearing; ball or roller screws; gear boxes and other speed changers, including torque converters; flywheels and pulleys, including pulley blocks; clutches and shaft couplings (including universal joints); parts thereof
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN to chapter 73 provides, in pertinent part, as follows:
(1) Tubes and pipes
Concentric hollow products, of uniform cross-section with only one enclosed void along their whole length, having their inner and outer surfaces of the same form. Steel tubes are mainly of circular, oval, rectangular (including square) cross-sections but in addition may include equilateral triangular and other regular convex polygonal cross-sections. Products of cross-section other than circular, with rounded corners along their whole length, and tubes with upset ends, are also to be considered as tubes. They may be polished, coated, bent (including coiled tubing), threaded and coupled or not, drilled, waisted, expanded, cone shaped or fitted with flanges, collars or rings.
EN 73.06 provides, in pertinent part, as follows:
This heading also includes:
(1) Tubes and pipes welded by forging, known as butt-welded tubes and pipes....
EN 73.08 provides as follows:
This heading covers complete or incomplete metal structures, as well as parts of structures. For the purpose of this heading, these structures are characterised by the fact that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc. Such structures sometimes incorporate products of other headings such as panels of woven wire or expanded metal of heading 73.14. Parts of structures include clamps and other devices specially designed for assembling metal structural elements of round cross-section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing.
The heading also covers parts such as flat-rolled products, "wide flats" including so-called universal plates, strip, rods, angles, shapes, sections and tubes, which have been prepared (e.g., drilled, bent or notched) for use in structures.
EN (B) to chapter 84 provides in pertinent part:
(6) Headings 84.81 to 84.84 cover certain general-purpose goods suitable for use as machinery parts or as parts of goods of other Chapters.
EN 84.83 provides, in pertinent part, as follows:
The goods covered by this heading are mainly:
i) Certain mechanical parts which are used in the transmission of power from an external power unit to one or more machines.
ii) Certain internal parts of a machine, used to transmit power to the various parts of the same machine.
(A) TRANSMISSION SHAFTS (INCLUDING CAM SHAFTS AND CRANK SHAFTS) AND CRANKS
These usually transmit a rotary motive power. They include:
(1) Main shafts or driving shafts driven directly by the motor.
(2) Counter shafts, for coupling to the main shaft by belts and pulleys or by cogs, etc.; they are used to take the drive from the main shaft to a number of machines, or to different parts of a machine.
(3) Articulated shafts, consisting of two or more shafts connected by ball and socket joints, etc.
(4) Flexible shafts which transmit the motion of a driving unit to, e.g., hand tools, measuring instruments (revolution counters, speedometers, etc.).
(5) Cranks and crank shafts. These may be either made in one piece or assembled from several parts. They receive a reciprocating motion (e.g., from a piston engine) and convert it into rotary movement, or vice versa.
(6) Cam shafts and eccentric shafts.
The heading does not cover simple axles which do not transmit power but merely support a wheel or other revolving part.
It also excludes:
(c) Oscillating connecting-rods for transmitting motion to cutter bars of lawn mowers or grass cutters (heading 84.33).
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In accordance with the definition of tubes and pipes in the ENs to chapter 73, HTSUS, the torque beams are octagonal hollow products of uniform cross-section with inner and outer surfaces of the same metal. As the definition provides that the hollow products may be "coupled or not," the presence of couplers and end caps does not affect the determination of the tube's uniform cross-section. Therefore, under GRI 1, the torque beams are classifiable in a heading of chapter 73, HTSUS, unless they are more specifically provided for elsewhere.
Protestant argues that the instant merchandise is not classified in heading 7308, HTSUS, which provides for metal structures, because the torque beams are not complete metal structures, do not have the essential character necessary to be considered incomplete metal structures, and have not been prepared for use in structures of heading 7308, HTSUS. We agree. In New York Ruling Letter (NY) N163076, dated May 25, 2011, and NY N275032, dated May 17, 2016, CBP classified metal racks used to secure solar panels in heading 7308, HTSUS, as metal structures. Unlike the subject torque beams, the merchandise therein consisted of metal tubes and other parts for racks, such as clamps and fasteners, and they were designed to be affixed to the ground. Accordingly, CBP found that these racks, which were designed to be permanently secured to the ground and to remain in such position, were metal structures of heading 7308, HTSUS. In the present case, however, the subject torque beams alone do not constitute structures for the solar panel tracking system because they are not "characterised by the fact that once they are put in position, they generally remain in that position." EN 73.08. In their condition as imported, the torque beams are intended to be movable and are not designed for use in a fixed position. Moreover, unlike the merchandise described in EN 73.08, the subject torque beams have not been drilled, bent, or notched, or otherwise prepared for use in structures. The torque beams, therefore, are precluded from heading 7308, HTSUS.
In addition, Protestant contends that the torque beams are correctly classified in heading 8483, HTSUS, as transmission shafts. We disagree. Although heading 8483, HTSUS, covers parts of machines that are used to transmit power, including rotary motive power, to other parts of machines, we find that the instant torque beams are neither parts of machines nor transmit such power to other parts of the solar panel tracking system. The term "part" is not defined in the HTSUS or ENs. In the absence of a statutory definition, courts have applied two tests to determine whether merchandise constitutes a part of an article. See Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). First, as set forth in United States v. Willoughby Camera Stores, Inc., a "part" of an article is "an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article." 21 C.C.P.A. 322, 324 (1933). Second, as held in United States v. Pompeo, an item is a "part" if (1) "at the time of importation [it is] dedicated solely for use" with a particular article, and (2) "when applied to that use ... meet[s] the definition of 'parts' established by the Willoughby case." 43 C.C.P.A. 9, 14 (1955). Moreover, an item is not a part if it is "a separate and distinct commercial entity." Bauerhin, 110 F.3d at 779.
Protestant asserts that the torque beams are an integral part of a solar panel tracking system because they provide structural and mechanical support to the system. Under Willoughby, however, the subject torque beams are not a part of the solar panel tracking system because they are not necessary for the system to perform its function of generating power from sunlight. Although the torque beams physically support the solar panels as they serve as the base of the system, such structural support does not constitute an integral part. Because the core function of tracking the sunlight is performed by the solar panels, not the torque beams, the solar panel tracking system can perform its primary function without the torque beams. Indeed, the motion of the torque beams support the solar panel tracking system by maximizing each solar panel's exposure to the sun. Such maximization, however, is a mere enhancement of a mechanical function that can be independently performed without the torque beams. Moreover, the fact that the torque beams are manufactured and designed specifically for use in a solar panel tracking system is not dispositive of whether the merchandise is an integral part of the system. The torque beams, therefore, do not constitute a part of machines within the HTSUS.
EN 84.83(A) further illustrates that the subject torque beams do not constitute transmission shafts of heading 8483, HTSUS. First, the torque beams do not possess any mechanical features, as they are not directly powered by a motor or an external power unit. Second, the torque beams do not transfer rotary power to the solar panels; instead, they transmit rotary motion by pivoting or turning the solar panels in either an eastern or western direction towards the sun. The distinction between rotary power and rotary motion is fundamental in classifying the merchandise in heading 8483, HTSUS. Protestant argues that the torque beams are "main shafts in that they are driven directly by the motor" because they "transmit rotary motion from the driveline and gear system, which are driven by the motor" and "take the drive from the main [torque beam] and deliver it to the system and/or receive reciprocating convert to the rotary movement." However, a transfer of motion is not equivalent to a transmission of power. The exemplars of transmission shafts in EN 84.83 illustrate that transmission shafts are parts that receive and transfer power in succession with other parts of the machine. They serve as an extension of a power-driving mechanism by transmitting the received power to the next sequential part to progressively perform a specific mechanical function. Unlike the transmission shafts that transmit rotational power received from a driving source to another part of a machine, the subject torque beams merely pivot the solar panels in either a left or right direction towards the sun. This simple motion does not constitute a transmission of power because the solar panels do not utilize this pivoting motion to generate power from the sun. The function of the solar panels is a separate process that does not congruently flow from the torque beam's rotary motion. Accordingly, we find that the pivoting motion of the torque beams is similar to the motion of a connecting rod that transmits oscillating motion to cutter bars of lawn mowers or grass mowers, which are excluded from heading 8483, HTSUS, pursuant to EN 84.83.
Therefore, the torque beams are distinct commercial entities that are more specifically described in heading 7306, HTSUS, which provides for other tubes. In NY N312661, dated July 14, 2020, CBP classified octagonal torque beams in heading 7306, HTSUS. Similar to the instant torque beams, the merchandise in NY N312661 was welded, galvanized nonalloy steel tubes that were designed to be used in a solar panel tracking system to support the solar panels and transmit rotational movement to the solar panels. They were similarly not drilled or punched and were ready for installation at the time of importation. The only difference between the subject torque beams and the merchandise in NY N312661 is that the merchandise therein was imported either with welded couplers or end caps attached. Nevertheless, the presence of couplers or end caps does not affect the classification of metal tubes. Based on the foregoing, we find that pursuant to GRI 1, the torque beams are properly classified in heading 7306, HTSUS, as other tubes.
By application of GRI 1, the torque beams are classified in heading 7306, HTSUS, specifically in subheading 7306.69.50, HTSUS, which provides, in pertinent part, for "Other tubes, pipes and hollow profiles (for example, open seamed or welded, riveted or similarly closed), of iron or steel: Other, welded, of noncircular cross section: Of other noncircular cross section: Having a wall thickness of less than 4 mm: Of iron or nonalloy steel." The 2018 and 2019 column one, general rate of duty is free.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 7306.69.50, HTSUS, unless specifically excluded, are subject to an additional 10 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, HTSUS, in addition to subheading 7306.69.50, HTSUS, listed above.
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 subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
Since reclassification of the merchandise as indicated above will result in a lower rate of duty than claimed, you are instructed to allow the protest in full.
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.
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
 A change of representation occurred while the case was pending before CBP. Miller Proctor Law PLLC was replaced by Clark Hill PLC as counsel for Protestant.
 CBP has historically classified metal pipes with fittings and couplings under the appropriate subheadings for tubes, pipes and hollow profiles of iron or steel in chapter 73, HTSUS. See e.g., NY B84807, dated May 23, 1997; NY G86941, dated Mar. 7, 2001; NY N166236, dated June 15, 2011.
 Cf. NY N299270, dated Aug. 21, 2018 (similar products described as torque tubes were classified in heading 7308, HTSUS; however, unlike the torque beams at issue in the instant protest, the torque tubes in NY N299270 were prepared for use in solar panel structures).
 Protestant cited various rulings that classified articles that transmitted rotary power in heading 8483, HTSUS. E.g., HQ 083123, dated Dec. 18, 1989; HQ 954851, dated Sept. 27, 1993; HQ 954150, dated June 29, 1994; NY N053667, dated Mar. 17, 2009. As explained above, however, the subject torque beams differ from the merchandise therein because the torque beams do not transmit rotary power.
 See HQ 954851, dated Sept. 27, 1993 (classifying a drive shaft, which is mounted in a straight line between a tractor's engine and external agricultural device, in heading 8483, HTSUS, as transmission shafts, because it mechanically transmits power from the engine to the external device).