H312779

HQ H312779 April 21, 2023 CLA-2 OT:RR:CTF:TCM H312779 NVF CATEGORY: Classification TARIFF NO.: 8462.21.00 Center Director, Machinery Center of Excellence and Expertise U.S. Customs and Border Protection Laredo Field Office 109 Shiloh Drive, Suite 300 Laredo, TX 78045 ATTN: Waiyin Lee, Import Specialist RE: Application for Further Review of Protest 140120104117; Classification of a tube mill Dear Center Director: This is in response to the Application for Further Review (AFR) of Protest No. 1401-20-104117, dated July 27, 2020, filed on behalf of Dundee Products (Dundee) in response to your classification of a Direct Forming Hollow Section Line or “tube mill,” model number FCF 240.3.3-100, under the Harmonized Tariff Schedule of the United States (HTSUS). The tube mill was entered on May 20, 2019, and liquidated on January 31, 2020. In deciding this request for further review, we considered Dundee’s protest filing, emails exchanged with the import specialist, supplemental arguments filed by Dundee on March 29, 2021, and additional information provided by Dundee via email. FACTS: The tube mill consists of a series of connected components that form strip steel into a square or rectangular tube. The full machine is 300 feet long, and is comprised of a strip uncoiler and accumulator, a direct flexible cold forming (FCF) line, a tube welding section, an FCF tube sizing section, a cut off, a finishing line, and integrated control electronics. Of these, all but the tube welding section and the cut off were imported together, in a single entry. Dundee states that both the welding section and the cut-off were sourced domestically. Each of these components is described in detail below. Once assembled, the machine can be programmed to form tubing of different dimensions, from ¾ inch to 2 ½ inches. The strip uncoiler and accumulator comprise the first segment of the tube mill. The rotating double uncoiler feeds steel strip from a large coil to the strip accumulator. The strip accumulator sustains a constant supply of strip, allowing the tube mill to operate continuously, even while a new coil of strip is being loaded. From the accumulator, the strip is sent to the direct-forming FCF line, where it is shaped into a square or rectangular tube using a series of rollers to crease and fold the steel into the desired square or rectangular shape, without the need to first form a round tube. Each set of rollers is angled to bend the strip incrementally, creating a “forming flower” and ultimately resulting in a square or rectangular tube. The tube mill is numerically controlled, with rollers that can be programmed to create tubing from ¾ into to 2 ½ inches without changing any parts. Next, the unfinished or “slit” tubing is sent to the high-frequency welding apparatus, which seals and fully encloses the tube. From there, the tube proceeds to the sizing apparatus and the cut-off, which measure and cut the tube to the desired length. Finally, the tube proceeds to the finishing apparatus, consisting of a run-out and stacking table. ISSUE: Whether Dundee’s tube mill is classified under heading 8455, HTSUS which provides for “Metal-rolling mills and rolls therefor; parts thereof,” or heading 8462 HTSUS which provides for “Machine tools (including presses) for working metal by forging, hammering or die-stamping.” LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision pertaining to classification. The protest was timely filed, within 180 days of liquidation of the 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. 1401-20-104117 is properly accorded pursuant to 19 C.F.R. § 174.24(c). Dundee alleges that the protest involves matters previously ruled upon by Customs and Border Protection (CBP) or by the courts but facts are alleged or legal arguments are presented here which were not considered at the time of the original ruling. Specifically, Dundee argues that the 2019 industry-accepted definition of a “tube mill” denotes a machine like the one at issue, and that the machines at issue in Headquarters Ruling letter (“HQ”) 965296 (July 9, 2001) and HQ 965198, (May 1, 2002) differ from Dundee’s tube mill. Classification under the HTSUS is determined 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 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. Only those subheadings at the same level of indentation are comparable. GRI 2(a) states: Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. The 2019 HTSUS provisions under consideration are as follows: 8455 Metal-rolling mills and rolls therefor; parts thereof: * * * * * 8462 Machine tools (including presses) for working metal by forging, hammering or die-stamping; machine tools (including presses) for working metal by bending, folding, straightening, flattening, shearing, punching or notching; presses for working metal or metal carbides, not specified above: Note 4 to Section XVI, HTSUS, which includes Chapter 84, provides as follows: Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or chapter 85, then the whole falls to be classified in the heading appropriate to that function. 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. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989). EN 84.55 states in pertinent part that: Rolling mills are metal working machines consisting essentially of a system of rollers between which the metal is passed; the metal is rolled out or shaped by the pressure exerted by the rollers, and at the same time the rolling modifies the structure of the metal and improves its quality. Rolling mills are of various types according to the particular rolling operations for which they are designed, viz.: (A) Rolling out to reduce the thickness with a corresponding increase in length (e.g., in the rolling of ingots into blooms, billets or slabs; rolling of slabs into sheet, strip, etc.). (B) Rolling of blooms, billets, etc., to form a particular cross-section (e.g., in the production of bars, rods, angles, shapes, sections, girders, railway rails). (C) Rolling tubes. (D) Rolling of wheel blanks or wheel rim blanks (e.g., to shape the flanges of railway wheels). Most rolling mills are designed for the operations indicated at (A) or (B) above. Other roller machines, bending, folding, straightening or flattening machines (heading 84.62) are not regarded as rolling mills in the sense described above and are therefore also excluded from this heading. EN 84.62 states in pertinent part that the heading covers: (2) Bending machines. These include machines for working flat products (sheets, p

Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision pertaining to classification. The protest was timely filed, within 180 days of liquidation of the 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. 1401-20-104117 is properly accorded pursuant to 19 C.F.R. § 174.24(c). Dundee alleges that the protest involves matters previously ruled upon by Customs and Border Protection (CBP) or by the courts but facts are alleged or legal arguments are presented here which were not considered at the time of the original ruling. Specifically, Dundee argues that the 2019 industry-accepted definition of a “tube mill” denotes a machine like the one at issue, and that the machines at issue in Headquarters Ruling letter (“HQ”) 965296 (July 9, 2001) and HQ 965198, (May 1, 2002) differ from Dundee’s tube mill. Classification under the HTSUS is determined 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 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. Only those subheadings at the same level of indentation are comparable.GRI 2(a) states:Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disass