CLA-2 RR:CTF:TCM H027025 JPJ
Mr. Steven P. Sonnenberg, Esq.
Sonnenberg & Anderson
Attorneys & Counselors at Law
300 South Wacker Drive
10th Floor
Chicago, Illinois 60606
RE: Request for Binding Ruling; Classification; DSI Ground Support, Inc., DSI Omega bolt
Dear Mr. Sonnenberg:
This is in response to your request on behalf of your client, DSI Ground Support, Inc., (DSI) concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the DSI Omega bolt. Product specifications and rock bolt illustrations demonstrating how the merchandise at issue works have been provided with the request. In reaching our determination, additional consideration has been given to the meeting held with CBP personnel on August 26, 2008.
FACTS:
The merchandise at issue is a DSI Omega bolt. The Omega bolt is an expansion rock bolt used to strengthen and stabilize rock masses, rock excavations, rock walls, tunnel walls, or mine shafts. It is comprised of a folded and expandable steel tube with welded ferrules at each end. It is inserted into either a pre-existing crack or hole or a hole drilled to accommodate the Omega bolt. A water inflation hole is at one end of the Omega bolt. The Omega bolt is secured and anchored in the rock by water, under high pressure, that is introduced into the bolt in order to create friction and pressure. As the bolt expands, it compresses the rock sourrounding the hole and adapts its shape, fully fitting the walls of the drilled hole. In this way, the Omega bolt creates a significantly more stable roofing structure in the mine shaft or tunnel. The DSI Omega bolts are not assembled together. When more than one rock bolt is utilized, the individual rock bolts are lodged in a rock mass and spaced at specific intervals.
The Omega bolt can assert an outward pressure of 300 psi. The Omega bolt is manufactured to different specifications with ultimate strengths of 10 tons standard, 12 tons standard, 12 tons plus, and 24 tons plus. The Omega bolt is manufactured in the following standard lengths: 5-foot, 6-foot, 7-foot, 8-foot, 10-foot, and 12-foot. The product is sold in packages of 100.
ISSUE:
Whether the Omega bolt is classified in heading 7308, HTSUS, as a structure or part of a structure of iron or steel, or heading 7326, HTSUS, as an other article of iron or steel.
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 HTSUS provisions under consideration are as follows:
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:
7308.40.00 Equipment for scaffolding, shuttering, propping or pit propping.
* * * * * * * * * * * * *
7326 Other articles of iron or steel:
7326.90 Other:
Other:
Other:
7326.90.85 Other.
* * * * * * * * * * * * *
Counsel states that the Omega bolt is similar in appearance and works on the same principle as Swellex rock bolts, which were the subject of Headquarters Ruling Letter (HQ) 967415, dated August 1, 2005. The Swellex rock bolt consists of the bolt, an installation rod with chuck, and the face plate. The bolt is a steel tube originally having an outer diameter of 41mm and a wall thickness of 2mm. The tube is mechanically reshaped to an outer diameter of 25.5mm. The Swellex rock bolts are placed in a drilled hole and expanded by high pressure water. Swellex rock bolts derive their suitability to a large range of ground conditions from their unique friction generating mechanism, which involves inflation of a folded steel tube by high water pressure. In HQ 967415, we classified Swellex rock bolts under heading 7326, HTSUS.
In reaching our determination in HQ 967415, we stated the term "structures" is not defined in the HTSUS or the ENs. In cases where tariff terms are undefined, they are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’").
The web site www.Dictionary.com defines the word “structure” as:
Something made up of a number of parts that are held or put together in a particular way: hierarchical social structure. The way in which parts are arranged or put together to form a whole; makeup: triangular in structure. The interrelation or arrangement of parts in a complex entity: political structure; plot structure. Something constructed, such as a building. Thesaurus
The American Heritage® Dictionary of the English Language: Fourth Edition. 2000 gives the following definition of “structure”:
...Something made up of a number of parts that are held or put together in a particular way: hierarchical social structure. 2 The way in which parts are arranged or...
Merriam-Webster Online Thesaurus offers the additional descriptions of the term “structuture”:
1 something built as a dwelling, shelter, or place for human activity the only structure on the island is an old Spanish fort--or what's left of 2 something put together by arranging or connecting an array of parts the Egyptian pyramids are among the most remarkable structures ever built the arrangement of parts that gives something its basic form the basic structure of all those tract houses is the same: basically, a box --
Based on these definitions, we concluded that in order to be considered a structure, an item must be a complex system consisting of a number of different parts or sections. While counsel agrees that HQ 967415 is correct in its analysis, counsel disagrees with our conclusion. Specifically, counsel argues that based on GRI 1, the Omega bolt meets the terms of heading 7308, HTSUS, because the Omega bolts are utilized in a combination to become parts of an overall structure.
Heading 7308, HTSUS, is an eo nomine provision that provides for structures and parts of structures of iron or steel. Examples of structures and parts of structures included in the legal text to heading 7308, HTSUS, are 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.
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
EN 73.08 states:
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 (emphasis added).
Rock bolts are not eo nomine provided for in heading 7308, HTSUS. As such, we must apply the canon of construction known as ejusdem generis. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157.
Upon review of the definitions provided for in HQ 967145, the legal text of heading 7308 and the EN 73.08 we conclude the structures of 7308, HTSUS, are complex systems made up from a number of different parts or sections that are put together or connected, i.e., by riveting, bolting, welding, etc. Applying the principle of ejusdem generis, we find that the Omega rock bolt is not classifiable in heading 7308, HTSUS, because it is not similar to the named contents of that heading. In this instance, the Omega bolt is not a complex system consisting of a number of different parts or sections such as 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. Moreover, the Omega rock bolt is not 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.
Therefore, the Omega bolt is not a structure described within the scope of heading 7308. Also, because all together the Omega bolt is not a structure, it can not individually be a part of a structure.
Heading 7326, HTSUS, is a general basket provision covering other articles of iron or steel. EN 73.26 states:
This heading covers all iron or steel articles obtained by forging or punching by cutting or stamping or by other processes such folding, assembling, welding truning milling or perforating Other than articles
included in the preceeding heading of this Chapter or covered by Note f to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.
Because no other heading in the HTSUS more accurately describes the articles under consideration, we conclude that the Omega bolt is properly classified in the general basket provision of heading 7326, HTSUS, as “Other articles of iron or steel”. The applicable subheading for the Omega bolt is subheading 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other”.
HOLDING:
In accordance with GRI I, the Omega bolt is classified in heading 7326, HTSUS. It is provided for in subheading 7326.90.8587, HTSUS as: “Other articles of iron or steel: Other: Other: Other: Other”. The 2008 general, column one rate of duty is 2.9 percent ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch