H316380

 HQ H316380 January 19, 2023 OT:RR:CTF:CPMMA H316380 AJK CATEGORY: Classification TARIFF NO.: 7306.69.50; 9903.88.15 Center Director 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. FACTS: 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. ISSUE: 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 * * * * 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 

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 steel7308 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 steel8483 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 p