Slip Op. 09 - 51
UNITED STATES COURT OF INTERNATIONAL TRADE
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:
HONDA OF AMERICA MFG., INC.,
:
Plaintiff,
:
v. Court No. 05-00058
:
UNITED STATES, :
Defendant. :
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Opinion & Order
[Upon cross-motions as to the classification of
oil bolts, summary judgment for the defendant;
action dismissed.]
Decided: June 5, 2009
Sandler, Travis & Rosenberg, P.A. (Jeremy Ross Page and
Shannon E. Fura1) and Lowell B. Howard, Jr., of counsel, for the
plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Edward F. Kenny); and Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection
(Michael W. Heydrich), of counsel, for the defendant.
AQUILINO, Senior Judge: Classification by U.S. Customs
and Border Protection (“CBP”) per HQ 966412 (Sept. 3, 2003) and,
1
Subsequent to final submission of this matter, the firm Page
Fura, P.C. was formally substituted for Sandler, Travis &
Rosenberg, P.A. as attorneys of record.
Court No. 05-00058 Page 2
upon reconsideration, HQ 966789 (June 21, 2004) of Honda
merchandise from Japan, collectively referred to as “oil bolts”,
under subheading 7318.15.80 (“Other screws and bolts, whether or
not with their nuts or washers . . . Other . . . Having shanks or
threads with a diameter of 6 mm or more”) of the Harmonized Tariff
Schedule of the United States (“HTSUS”) at a duty rate of 8.5
percent ad valorem has caused the above-encaptioned plaintiff to
protest and now to plead more correct classification under HTSUS
heading 8708 or 8714, which encompass parts and accessories of
motor vehicles.
I
Subject-matter jurisdiction has been properly invoked
pursuant to 28 U.S.C. §1581(a)2, and the plaintiff has interposed a
motion for summary judgment based upon a requisite USCIT Rule 56(h)
“separate, short and concise statement of the material facts as to
which . . . there is no genuine issue to be tried”. Among others,
they are:
2
The parties now agree that a number of Honda entries sought
to be impleaded in this matter are not, as a matter of fact and
law, before the court. Compare Defendant’s Answer to Complaint,
Annex A with Plaintiff’s Statement of Uncontested Facts, para. 2,
and Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary
Judgment, §III.
Court No. 05-00058 Page 3
23. The oil bolts the subject of this action have
been organized into three groups as identified in
Plaintiff’s complaint.
24. Each of the oil bolts identified by part numbers
25950689 9000, 25950P7T 0000, 25950PL4 000, 25950PL5 000,
25950PX4 000, 25951639 0000, 4646ASEO 0000, and 90145MS9
6100MI were imported by Plaintiff on one or more of the
consumption entries pertaining to this action.
* * *
28. The oil bolts have specialized design features.
29. The oil bolts are designed according to Honda
Engineering Standards.
30. The oil bolts have one or four cross-sectional
holes.
31. Certain of the oil bolts for use in transmission
applications have extended stems.
32. The extended stems deliver transmission fluid to
the differential of an automotive transmission.
33. All of the oil bolts are hollow throughout their
length.
34. One of the oil bolts’ functions is to permit the
unimpeded passage of fluid from the brake or transmission
line.
* * *
36. One of the oil bolts’ functions is to seal the
oil bolt and banjo fitting to the brake master cylinder
or transmission case as appropriate to the specific oil
bolt.
Citations omitted. The plaintiff further describes its goods as
follows:
Court No. 05-00058 Page 4
The lower half of the oil bolt’s shank is threaded,
with the half closest to the oil bolt’s head comprised of
a smooth external surface. . . . Depending upon the
application and/or design involved, either one or four
cross-sectional beveled and indented holes are bored into
the upper non-threaded portion of the shank. . . . In
addition, through a forging process, the shank of the oil
bolt has been hollowed throughout its entire length.
. . . The combined design of the single or cross-
sectional holes and the hollowed out shank provide[] the
conduit through which brake or transmission fluid
transits from the hose assembly to the brake master
cylinder or transmission case, as appropriate. . . . In
addition to these design features, instances where the
delivery of automotive transmission fluid is involved,
the oil bolts have also been designed and manufactured
with an extended hollow stem which ensures the precise
application of transmission fluid onto the automobile’s
differential. . . .
Plaintiff’s Memorandum of Law, pp. 7-8 (citations omitted).
The defendant does not contest these factual averments,
save number 33. Rather, it has responded with a cross-motion for
summary judgment, the import of which is that there is no genuine
issue of material fact that requires trial within the meaning of
USCIT Rule 56 and teaching of Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). Upon review of the cross-motions, this
court concurs.3
3
In fact, the quality of the written submissions on both
sides obviates any need to grant plaintiff’s motion for oral
argument, which therefore can be, and it hereby is, denied.
Court No. 05-00058 Page 5
A
Indeed, a classification decision, ultimately, is a
question of law based on two underlying steps. E.g., Universal
Elecs., Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir. 1997).
First, the court must define the terms in each of the arguably
relevant classification headings; then it must determine under
which of them the subject imports correctly fall. Defining these
terms is a matter of law, and the court proceeds de novo and
without deference to the agency. See, e.g., id.
According to the HTSUS General Rules of Interpretation,
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Looking to
those “terms of the headings” and “relative section or chapter
notes”, the court examines the provisions pertaining to HTSUS
subheading 7318.15.80. The relevant section notes explain that,
throughout the tariff schedule, “parts of general use” refers to
articles of heading 7318, Section XV, Note 2(a), namely:
Screws, bolts, nuts, coach screws, screw hooks, rivets,
cotters, cotter pins, washers (including spring washers)
and similar articles, of iron or steel[.]
HTSUS Chapter 87, Section XVII, Note 2(b) specifically refers back
to this note, to wit:
Court No. 05-00058 Page 6
The expressions “parts” and “parts and accessories” do
not apply to . . . [p]arts of general use, as defined in
note 2 to section XV[.]
Therefore, the initial test for plaintiff’s articles herein is
whether the definition of screws, bolts and similar articles of
iron or steel covers them. If it does, the statute dictates that
they cannot be classified in Chapter 87. No further investigation
would be necessary: the articles must be classified under Chapter 73.
Additionally, in reviewing the Explanatory Notes4 to
Section XV, General(C) Parts of Articles states explicitly that
parts of general use . . . presented separately are not
considered as parts of articles, but are classified in
the headings of this Section appropriate to them. This
would apply, for example, in the case of bolts
specialised for central heating radiators or springs
specialised for motor cars. The bolts would be
classified . . . as bolts . . . [and the] springs would
be classified . . . as springs[.]
World Customs Organization, Harmonized Commodity Description and
Coding System, Explanatory Notes (ENs). On its face, this approach
does not generally make an exception for specialized parts when
considering parts of general use imported separately. According to
4
Although such notes are not determinative, they are intended
to clarify the scope of HTSUS headings and to offer guidance in
interpreting subheadings. E.g., Mita Copystar Am. v. United
States, 21 F.3d 1079, 1082 (Fed.Cir. 1994).
Court No. 05-00058 Page 7
Customs publication, Distinguishing Bolts From Screws (rev. May
2000), a
screw is an externally threaded fastener capable of being
inserted into holes in assembled parts, of mating with a
preformed internal thread or forming its own thread, and
of being tightened or released by torquing the head.
Plaintiff’s Motion for Summary Judgment, Exhibit 5, p. 3. And, an
externally threaded fastener, which has a thread form
which prohibits assembly with a nut having a straight
thread of multiple pitch length, . . . [or] which must be
torqued by its head into a tapped or other preformed hole
to perform its intended service[,] is a screw.
Id. at 4, 5.
B
The court reviews the underlying agency analysis to
determine whether it “is eligible to claim respect.” United States
v. Mead Corp., 533 U.S. 218, 221 (2001). The degree of that respect
depends upon
the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which
give it power persuade, if lacking power to control.
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Additionally,
by
statute, Customs’ classification decision is presumed to
be correct. 28 U.S.C. § 2639(a)(1) (1994). . . . The
presumption of correctness [] carries force on any
factual components of a classification decision, such as
Court No. 05-00058 Page 8
whether the subject imports fall within the scope of the
tariff provision, because facts must be proven via
evidence.
Universal Elecs., Inc. v. United States, 112 F.3d at 491-92
(internal quotations omitted; emphasis in original).
CBP’s ruling letter HQ 966412, page 7, concluded that
plaintiff’s merchandise
clearly meets the definition of a screw that is
classifiable in heading 7318 insofar as it is a cylinder
shaped metal object that has threads and a head designed
or adapted for tightening by an instrument. Although it
may be a specialized screw for use in a part of an
automobile, it is nonetheless a screw that meets the
terms of and is classifiable in heading 7318. Moreover,
as indicated above in the Explanatory Notes, heading 7318
“includes all types of fastening bolts and metal screws
regardless of shape and use . . ..”
Furthermore,
the fastener is classifiable in heading 8708 by the fact
that it is a part of a part for use in a motor vehicle of
headings 8701 to 8705, but it is excluded from
classification in that heading by note 2(b) to Section
XVII.
The plaintiff does not counter the conclusion that its
goods meet the definition of screw. Cf. Rocknel Fastener, Inc. v.
United States, 267 F.3d 1354, 1359 (Fed.Cir. 2001). Instead, it
focuses on the determination’s consistency with earlier agency
pronouncements and previous court decisions. It contends that
Court No. 05-00058 Page 9
conclusions reached by Customs in HQ 954102 (March 15, 1994), NY
F88921 (July 7, 2000), and HQ H007106 (May 8, 2007) support its
position herein.
HQ H007106 concerned a plastic timer knob assembly used
to activate the timer on a home laundry dryer. In determining the
knob to be a part of a drying machine, CBP specifically stated that
“[k]nobs are not described in Note 2 to Section XV, HTSUS, as parts
of general use nor are they similar to any of the articles
mentioned therein.” Perhaps, this was due to the fact that Section
XV covers “base metals and articles of base metal”, while the knobs
at issue were plastic.
NY F88921 addressed an import referred to as a “washer”,
yet Customs found that it did not have the characteristics of a
washer as described in the Explanatory Notes, i.e., “a small thin
disc intended to be placed to protect a part.” That that import
did not satisfy the general-use definition distinguishes the matter
now under consideration.
The focus in HQ 954102 was on classification of a front
parking brake cable for a non-electrical utility vehicle 11 inches
long and consisting of
Court No. 05-00058 Page 10
stranded steel wires encased in hard rubber. One end of
the cable has a metal fitting threaded 1 ½ inch from the
end that accommodates two (2) nuts. The other end has a
2 ¾ inch long claw-like device attached perpendicular to
the wire.
That article was subject to the same parts-of-general-use provision
found at Note 2(a) to Section XV and to consideration of whether or
not it fit into the general-use HTSUS heading 7312,
Stranded wire, ropes, cables, plaited bands, slings and
the like, of iron or steel, not electrically insulated:
Ropes, cables and cordage other than stranded wire[,]
or heading 8709, covering parts suitable for use solely or
principally with certain engines further described, or another
heading. The Explanatory Note to 7312 states:
The heading includes such ropes, cables, bands, etc.,
whether or not they are cut to length, or fitted with
hooks, spring hooks, swivels, rings, thimbles, clips,
sockets, etc. (provided that they do not thereby assume
the character of articles of other headings) . . ..
In HQ 954102, Customs determined that that brake cable landed under
8709, citing HQ 953111 (Jan. 4, 1993), concerning control cables,
that considered
their specific length and thickness and their special end
terminations which dedicate them for use in [certain
vehicles and thereby found that they] have assumed the
character of articles of Heading 8708
Court No. 05-00058 Page 11
and thus determined that “such cables, therefore, are not provided
for as ‘parts of general use’ in Section XV”.
Upon reading HQ 954102, the considerations therein
deviate substantially from CBP’s approach to the oil bolts in this
action. Underlying ruling, HQ 953111, explains that the HTSUS has
as its basis the International Convention on the Harmonized
Commodity Description and Coding System. And further, that Article
6 of that Convention established the Harmonized System Committee
(HSC), representatives of which meet twice a year to consider
issues of interpretation of the Convention. In October 1993,
several recent HSC opinions were considered, and a resulting
amendment of the ENs to HTSUS heading 8709 added the following
subpart (9):
Parts of this heading include:
* * *
(9) Clutch cables, brake cables, accelerator cables
and similar cables, consisting of a flexible
outer casing and a movable inner cable. They
are presented cut to length and equipped with
end fittings.
In considering one of those opinions that led to the amendment, HQ
953111 explains that, “[w]hile the HSC decision is not binding on
Court No. 05-00058 Page 12
the Customs Service, upon further consideration of the issue
Customs intends to follow the Committee’s decision.”
HQ 962586 (May 28, 1999), the reconsideration of HQ
954102, amongst others, also discusses this change to the ENs. It
states that,
[b]ased upon the amendment of the ENs, and the evinced
intent of the HSC to include accelerator cables within
Heading 8708, 8709 [and] 8714[,] we believe that a change
of Customs position in the subject rulings is mandated.
That is, the Service’s decision to classify those articles in
Chapter 87, rather than under HTSUS 7312, was instigated by the HSC
and addition to the ENs. The ENs that correspond to HTSUS 8708
have 14 inclusive statements, the ENs for 8714 have 25. While the
ENs for heading 8714 do include a statement exactly as (9) to 8709,
supra, none of the 39 statements make any mention of screw, bolt,
or the like, which absence supports defendant’s position that 8708
and 8714 do not govern herein. In sum, HQ 954102 is also
unsupportive of plaintiff’s proffered position in this action.
The plaintiff claims support of existing case law,
namely, Bauerhin Technologies Ltd. Partnership v. United States,
110 F.3d 774 (Fed.Cir. 1997), United States v. Pompeo, 43 CCPA 9
Court No. 05-00058 Page 13
(1955), and United States v. Willoughby Camera Stores, Inc., 21
CCPA 322 (1933). But none of those cases dealt with a defined
parts-of-general-use provision á la the one now at bar. Moreover,
prior administrative determinations support defendant’s position.
NY 816282 (Nov. 9, 1995) involved a “banjo bolt”5 described as a
steel screw with a hexagonal head, a shank with threads on its
bottom half, and a horizontal hole through its upper half. It was
to be inserted into the master cylinder of a brake to help control
the flow of brake fluid. The ruling classified the part under
HTSUS heading 7318, providing for “Screws, bolts, nuts, coach
screws”. NY F85449 (April 11, 2000) considered a motor vehicle
hollow screw for Porsche Cars North America, Inc. It was described
as a socket head screw, of stainless steel, with a threaded, hollow
shaft with two holes at the top of the shaft immediately below the
head. Porsche claimed that the item functioned by attaching an oil
feed line to a timing chain tensioner while also allowing oil to
flow into the tensioner and then onto the chain. The ruling
classified the part under heading 7318.
5
Plaintiff’s papers also use this term in referring to its
merchandise. See, e.g., Plaintiff’s Memorandum of Law, p. 7.
Court No. 05-00058 Page 14
II
Concluding that the term “screw” defines the articles at
issue, and finding that prior Customs rulings support CBP’s current
position, the court concludes that the oil bolts at issue herein
have been correctly classified under HTSUS subheading 7318.15.80.
Plaintiff’s motion for summary judgment must therefore be denied,
with defendant’s cross-motion granted. Summary judgment will enter
accordingly.
So ordered.
Decided: New York, New York
June 5, 2009
/s/ Thomas J. Aquilino, Jr.
Senior Judge