CLA-2 OT: RR: CTF: TCM: H022180 RM
Port Director
San Francisco Service Port
U.S. Customs and Border Protection
555 Battery Street, Room 319 San Francisco, CA 94111
RE: Steel Balusters; Application for Further Review of Protest No. 2809-07- 100714
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2809-07-100714, timely filed by counsel on behalf of House of Forgings, Inc., concerning the classification of steel balusters under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This protest concerns steel balusters, i.e., uprights used to support a handrail, that, when attached to the handrail, form what is known as a balustrade. The instant balusters are edge-worked on one side; specifically, they are turned, forged, or otherwise reduced or formed to a circular dimension, and perforated for positive orientation into a receiving pocket on the underside of the top rail. Most have an ornamental or architectural surface finish. Pictures of various types of balusters were submitted along with the request.
Protestant entered the merchandise on June 6, 2006, under heading 7308, HTSUS, which provides in relevant part for “Structures … and parts of structures … of iron or steel.” U.S. Customs and Border Protection (“CBP”) liquidated the goods on May 18, 2007, under heading 7326, HTSUS, as “Other articles of iron or steel.” Protestant timely filed the instant protest and AFR on November 14, 2007.
ISSUE:
Whether the steel balusters are classified under heading 7326, HTSUS, as other articles of iron or steel, or under heading 7308, HTSUS, as parts of structures?
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 all involved entries (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. 2809-07-100714 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the Protest was filed involves matters previously ruled upon by CBP or by the courts but facts are alleged or legal arguments are presented which were not considered at the time of the original ruling. Specifically, Protestant argues that in New York Ruling Letter (”NY”) C89444, dated July 15, 1998, CBP did not consider the classification of steel balusters in heading 7308, HTSUS, as “Structures … and parts of structures … of iron or steel.” In that ruling, CBP classified metal balusters under heading 7326, HTSUS, as "Other articles of iron or steel." That file is not available for our review as a result of the terrorist attacks of September 11, 2001. However, based on the text of the ruling, we believe that classification under heading 7308, HTSUS, was not considered.
Classification under the HTSUS is made 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.
The 2006 HTSUS provisions under consideration are as follows:
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:
7326 Other articles of iron or steel:
Protestant argues that the subject balusters are classified under heading 7308, HTSUS, as parts of structures. He submits that balustrades are per se structures and the balusters are parts thereof. In the alternative, Protestant argues that the balusters are classified under heading 7308, HTSUS, as “plates, rods … and the like, prepared for use in structures, of iron or steel.”
Heading 7308, HTSUS, provides for “Structures … and parts of structures … of iron or steel.” The term “structure” is not defined in the tariff. The Court examined the meaning of the term "structure" in S.G.B. Steel Scaffolding & Shoring Co., Inc. v. United States, 82 Cust. Ct. 197, 211 (Cust. Ct. 1979) and determined that "there is no precise definition of the term ‘structure.’” It noted that the common meaning of tariff descriptions has frequently been applied by the courts in such instances. “To ascertain the common meaning of a term, a court may consult dictionaries, scientific authorities, and other reliable information sources and lexicographic and other materials.” See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). In addition, the Explanatory Notes of the Harmonized Commodity Description and Coding System (“ENs”) while not binding law, offer guidance as to how tariff terms are to be interpreted. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation").
In Headquarters Ruling Letter (“HQ”) 967415, dated August 1, 2005, CBP drew from the following dictionary sources to define the term “structure”:
www.dictionary.com:
Something made up of a number of parts that are held or put together in a particular way: … The way in which parts are arranged or put together to form a whole; ... The interrelation or arrangement of parts in a complex entity: … Something constructed, such as a building.
The American Heritage Dictionary of the English Language, (4th Ed. 2000):
1. Something made up of a number of parts that are held or put together in a particular way: …
2. The way in which parts are arranged.
Merriam-Webster’s Dictionary Online, available at www.m-w.com:
1. Something built as a dwelling, shelter, or place for human activity …
2. Something put together by arranging or connecting an array of parts …
Based on these definitions, CBP determined that the term “structure” refers to “a complex system consisting of a number of different parts or sections.” In addition, EN 73.08 explains that:
Structures are characterized 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, wielding, etc.
We conclude that balustrades are “structures” because they are complex systems consisting of a number of parts or sections (bars riveted or bolted to a rail) that, once put in position, generally remain in position. See EN 73.08. It follows that the steel balusters at issue, which are used as the upright supports of a balustrade, are parts of those structures and are thereby classified under heading 7308, HTSUS. See HQ H044637, dated February 2, 2009. As such, we need not address Protestant’s alternative argument concerning classification under heading 7308, HTSUS, as rods prepared for use in structures.
HOLDING:
By application of GRI 1, the steel balusters are classified under heading 7308, specifically in subheading 7308.90.95, HTSUS, which provides for: "Structures ... and parts of structures (for example ...balustrades ...) of iron or steel; ...: Other: Columns, pillars, posts, beams, girders, and similar structural units: Other." The 2006 column one, general rate of duty is: Free.
Since reclassification of the merchandise will result in a lower rate of duty than the liquidated rate, you are instructed to allow the Protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP 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 and Trade Facilitation Division