HQ 966864

August 12, 2004


CLA-2 RR:CR:GC 966864 RSD

CATEGORY: Classification

TARIFF NO. 8413.91.9050

Port Director
Port of Miami
Customs and Border Director
P.O. Box 52-3215 Miami, FL 33122-3215

RE:     Protest 3901-03-100474; Flanges for hydraulic pumps

Dear Port Director:

    This is our decision on Protest 5201-03-100474 filed at the Miami Service Port on behalf of Parker Hannifin Corporation against your classification of flanges and gears under the Harmonized Tariff Schedule of the United States (HTSUS). The entry under consideration was liquidated on August 1, 2003. The protest was timely filed on September 4, 2003. On July 28, 2004, we received a supplemental submission containing diagrams of the product.

FACTS:

    The merchandise under consideration were described on the invoices as flanges or covers. They are aluminum castings that are machined and finished in Germany to become flanges or the front covers for the importer’s hydraulic gear pumps. These flanges are machined to the importer’s specifications and are intended for use as covers on hydraulic gear pumps. According to the Protestant the flanges are not used to connect pipes or tubes together.

Protestant has submitted copies of photographs and diagrams showing the subject merchandise. One of the diagrams contains the description “SECOV”, which stand for shaft end cover. The submitted diagrams seem to show that the flanges are being used as front covers for the pump housing. We note that the drive gear of the hydraulic pump passes through the flanges.

    Based on the description of the flanges on the invoices, your office classified the merchandise under subheading 7609.00.00, HTSUS as aluminum pipe fittings.

ISSUE:

    Whether the imported aluminum flanges are classified in heading 8413, HTSUS as parts of hydraulic fluid pumps or in heading 7609, HTSUS as aluminum pipe fittings.

LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied.
The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. Customs and Border Protection (CBP) believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The HTSUS provisions under consideration are as follows:

7609.00.00    Aluminum tube or pipe fittings (for example, couplings, elbows, sleeves).

    *    *    *    *    *    *    *

8413    Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof:

        Other pumps; liquid elevators:
        
            Parts:

8413.91                Of pumps:

8413.91.90                    Other.


    *    *    *    *    *    *    *    

EN 76.09 instructs that EN 73.07 should be used in order to determine whether articles are classified as pipe and tube fittings in heading 7609, HTSUS. EN 73.07 covers pipe and tube fittings of iron and steel. In other words, although the articles under consideration are made of aluminum, if they otherwise meet the description provided by EN 73.07, they would be classified in heading 7609, HTSUS. EN 73.07 states that the heading covers fittings 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 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, coupling or sleeves, clean out traps, nipples, unions, clamps and collars.

In this instance, the products are referred to on the invoices and literature as flanges. However, the product under consideration does not perform the function that flanges typically perform. Flanges that are classified in headings 7307 and 7609, HTSUS, are used for connecting tubes or pipes. In this case, although the product is referred to as a flange, it is not used to connect pipes or tubes together or to connect a tube to another apparatus. In addition, there is no indication that the flanges in this case are used to close an aperture of a tube. Rather, based on the supplemental material that the Protestant submitted, we are convinced that the product under consideration acts as a cover of the housing of a hydraulic fluid pump. On one of the diagrams submitted, there is a description, “SECOV”, which stands for “Shaft End Covers”. The submitted diagrams also show that the flanges are being used as front covers for the pump housing rather than as a connector. The drive gear of the pump, which acts as the customer interface, passes through this cover. Therefore, we conclude that the flanges under consideration do not function as a type of connector, but as a cover of the housing of hydraulic fluid power pumps. Because the flanges in this case are not used to connect or to close the aperture of a pipe or tube, they do not constitute aluminum tube or pipe fittings that would meet the terms of heading 7609, HTSUS.

Given that the flanges cannot be classified in heading 7609, HTSUS, we will look at the alternative proposed heading of 8413, HTSUS, as parts of pumps for liquids. First, there is no dispute that the flanges are used in hydraulic pumps and that the hydraulic pumps are machines classified in heading 8413, HTSUS. However, in classifying the flanges, we must determine if they are parts of the hydraulic pumps. After importation the flanges are attached to the housing of the hydraulic pumps to serve as the front covers of the hydraulic pumps. As the front cover, the flanges are permanently joined to the hydraulic pumps and become an integral and necessary element for the completion of the hydraulic pumps. Accordingly, we conclude that the flanges are parts of hydraulic pumps. Heading 8413, HTSUS, which covers hydraulic pumps, is a heading in Section XVI of the HTSUS. Because the flanges are parts of a machine classified in Section XVI, HTSUS, Note 2 of that section of the HTSUS is applicable. Section XVI Note 2 states, in pertinent part, the following:
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:
(a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
(b) 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. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517

The flanges are parts that are suitable for use solely with hydraulic pumps for liquids classified in heading 8413, HTSUS. Thus, based on Section XVI, Note 2(b), the flanges are also classified in the same heading as hydraulic pumps, heading 8413, HTSUS. Accordingly, we find that the flanges are classified in subheading 8413.91.90, HTSUS, as parts of hydraulic fluid power pumps.

HOLDING:

The flanges for hydraulic pumps are classified in subheading 8413.91.9050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as parts for Pumps for liquids, whether or not fitted with a measuring device; liquid elevators; part thereof: Other pumps; liquid elevators. The general rate of duty in 2004 is free. Duty rates are provided for your
convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

You are instructed to ALLOW the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs
personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

                Sincerely,


                    Myles B. Harmon, Director
                    Commercial Rulings Division