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HQ 953800

July 28, 1993

CLA-2 CO:R:C:M 953800 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7308.90.90; 7325.99.10; 7307.11.00; 7307.91.50; 7307.19.30; 7609.00.00; 7610.90.00; 8302.49.60 7325.10.00

District Director
U.S. Customs Service
Second and Chestnut Streets
Philadelphia, PA 19106

RE: Protest No. 1101-93-100049; Ductile Iron, Grey Iron, and Aluminum Fence Fittings; HQ 953376; Explanatory Note 73.07; Explanatory Note 76.09; 8302.10.60

Dear District Director:

The following is our decision regarding the request for further review of Protest No. 1101-93-100049 concerning your action in classifying and assessing duty on ductile iron, grey iron, and aluminum fence fittings under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of ductile iron, grey iron, and aluminum fence fittings. Specifically, the ductile iron fittings are as follows: corner barb arms, 180 degree adapters, backstop angles, cantilever rollers, cantilever gate latches, and industrial locking devices. The grey iron fittings are as follows: brace rail ends, loop caps, post caps, barb arm bases, floor flanges, gate hold backs, and gate center stops. The aluminum fittings are as follows: gate corners, butterfly latches, gate plugs, acorn post caps, dome post caps, loop caps, and offset rail ends.

The ductile iron fittings were entered under subheading 7325.99.10, HTSUS, as other cast articles of iron. The grey iron fittings were entered under subheading 7325.10.00, HTSUS, as other cast articles of nonmalleable cast iron. The aluminum fittings were entered under subheading 7609.00.00, HTSUS, as aluminum tube or pipe fittings. The entries were liquidated on December 4, 1992, December 11, 1992, December 18, 1992, and December 28, 1992. Entries regarding the ductile iron fittings were liquidated under subheading 8302.10.60, HTSUS, as other hinges, and parts thereof, of iron. Entries regarding the grey iron and aluminum fittings were liquidated under subheading 8302.49.60, HTSUS, as other mountings, fittings, and similar articles, and parts thereof, of iron and aluminum. The protest was timely filed by the protestant on January 25, 1993.

The subheadings under consideration are as follows:

7325.10.00: [o]ther cast articles of iron or steel: [o]f nonmalleable cast iron.

Goods classifiable under this provision receive duty free treatment.

7325.99.10: [o]ther cast articles of iron or steel: [o]ther: [o]ther: [o]f cast iron.

The general, column one rate of duty is 3.1 percent ad valorem.

7609.00.00: [a]luminum tube or pipe fittings (for example, couplings, elbows, sleeves).

The general, column one rate of duty is 5.7 percent ad valorem.

8302.10.60: [h]inges, and parts thereof: [o]f iron or steel, of aluminum or of zinc: [o]ther.

The general, column one rate of duty is 5.7 percent ad valorem.

8302.49.60: [b]ase metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; . . . and base metal parts thereof: [o]ther mountings, fittings and similar articles, and parts thereof: [o]ther: [o]ther: [o]f iron or steel, of aluminum or of zinc.

The general, column one rate of duty is 5.7 percent ad valorem.

7308.90.90: [s]tructures (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: [o]ther: [o]ther.

The general, column one rate of duty is 5.7 percent ad valorem.

7307.11.00: [t]ube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: [c]ast fittings: [o]f nonmalleable cast iron.

The general, column one rate of duty is 4.8 percent ad valorem.

7307.19.30: [t]ube or pipe fittings (for example couplings, elbows, sleeves), of iron or steel: [c]ast fittings: [o]ther: [d]uctile fittings.

The general, column one rate of duty is 6.2 percent ad valorem.

7307.91.50: [t]ube or pipe fittings (for example couplings, elbows, sleeves), of iron or steel: [o]ther: [f]langes: [o]ther.

The general, column one rate of duty is 6.2 percent ad valorem.

7610.90.00: [a]luminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-sections, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles, tubes and the like, prepared for use in structures: [o]ther.

The general, column one rate of duty is 5.7 percent ad valorem.

ISSUE:

Whether the ductile iron fence fittings are classifiable under subheading 7325.99.10, HTSUS, as other cast articles of iron, under subheading 8302.10.60, HTSUS, as hinges, and parts thereof, of iron, under subheading 7307.19.30, HTSUS, as other ductile iron pipe fittings, under subheading 7308.90.90, HTSUS, as articles prepared for use in structures, of iron, or under subheading 8302.49.60, HTSUS, as other mountings, fittings, and similar articles, of iron?

Whether the grey iron fence fittings are classifiable under subheading 7325.10.00, HTSUS, as other articles of nonmalleable cast iron, under subheading 8302.49.60, HTSUS, as other mountings, fittings, and similar articles, of iron, or under subheading 7307.11.00, HTSUS, as tube or pipe fittings, of nonmalleable cast iron, under subheading 7308.90.90, HTSUS, as articles prepared for use in structures, of iron, or under subheading 7307.91.50, as other flanges, of iron?

Whether the aluminum fence fittings are classifiable under subheading 7609.00.00, HTSUS, as aluminum tube or pipe fittings, under subheading 7610.90.00, as aluminum articles prepared for use in structures, or under subheading 8302.49.60, HTSUS, as other mountings, fittings, and similar articles, of aluminum?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

We will first deal with the classification of the ductile iron fence fittings, which include corner barb arms, 180 degree adapters, backstop angles, cantilever rollers, cantilever gate latches, and industrial locking devices. The 180 degree adapters, cantilever rollers, cantilever gate latches, and industrial locking devices are used as gate fittings. Although entries regarding these fittings were liquidated as hinges, and parts thereof, it has come to our attention that the fittings are not used either as hinges or as parts of hinges. Therefore, they are not classifiable under subheading 8302.10.60, HTSUS.

Concerning the classification of fence fittings, in HQ 953376, dated May 14, 1993, we held that fence fittings, which are used as gate fittings, are classifiable under heading 8302, HTSUS, because of their similarity to door fittings. All other fence fittings are classifiable elsewhere under the HTSUS.

The corner barb arms, which are used to attach barb wire to fences, are not described as pipe fittings, as articles prepared for use in structures, or elsewhere in the HTSUS. Therefore, it is our position that they are classified under subheading 7325.99.10, HTSUS.

It is our position that the backstop angles, which are angled pipe fittings, are classifiable under subheading 7307.19.30, HTSUS.

The 180 degree adapters, cantilever rollers, cantilever gate latches, and industrial locking devices, all of which are gate fittings, are classifiable under subheading 8302.49.60, HTSUS.

We will now deal with the classification of the grey iron fence fittings, which include brace rail ends, loop caps, post caps, barb arm bases, floor flanges, gate hold backs, and gate center stops. The gate hold backs and gate center stops are used as gate fittings.

The barb arm bases, which are used to attach barb wire to fences, are classifiable under subheading 7325.10.00, HTSUS.

With regard to the classification of the brace rail ends, the offset rail ends, and the loop caps, headings 7307 and 7308, HTSUS, are applicable.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 73.07 (p. 1019) states that:

[t]his heading covers fittings or iron or steel, 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. . .

The heading excludes:

(a) Clamps and other devices specially designed for assembling parts of structures (heading 73.08).

The brace rail ends, the offset rail ends, and the loop caps would be classifiable under heading 7307, HTSUS, as pipe fittings, except for Explanatory Note 73.08. Because the brace rail ends, offset rail ends, and loop caps are designed for assembling tubular railings, which are structural elements, to other parts of a fence, they are precluded from classification under heading 7307, HTSUS, and are classifiable under subheading 7308.90.90, HTSUS.

With regard to the classification of the post caps, it is our position that they are classifiable under heading 7307, HTSUS. In part, Explanatory Note 73.07 states that "[t]his heading therefore includes . . . caps and plugs . . ." Because the post caps are used to close fence tubes and are not precluded from classification under heading 7307, HTSUS, they are classifiable under subheading 7307.11.00, HTSUS.

It is our position that the floor flanges are specifically classifiable under subheading 7307.91.50, HTSUS.

It is also our position that the gate hold backs and gate center stops are classifiable as gate fittings under subheading 8302.49.60, HTSUS.

We will now deal with the classification of the aluminum fence fittings, which include gate corners, butterfly latches, gate plugs, acorn post caps, dome post caps, loop caps, and offset rail ends. The gate corners, butterfly latches, and gate plugs are used as gate fittings.

In part, Explanatory Note 76.09 (p. 1067) states that:

[t]he provisions of the Explanatory Notes to headings 73.07 to
74.12 apply mutatis mutandis, to this heading.

The heading does not cover:

(a) Clamps and other devices specially designed for assembling parts of structures (heading 76.10).

Because the acorn post caps and the dome post caps are used to close fence tubes and are not precluded from classification under heading 7609, HTSUS, by the exclusion under Explanatory Note 76.09, they are classifiable under subheading 7609.00.00, HTSUS.

However, because the loop caps and offset rail ends are designed for assembling tubular railings to other parts of a fence, they are precluded from classification under heading 7609, HTSUS, and are classifiable under subheading 7610.90.00, HTSUS.

It is our position that the gate corners, butterfly latches, and gate plugs are classifiable as gate fittings under subheading 8302.49.60, HTSUS.

HOLDING:

The ductile iron backstop angles are classifiable under subheading 7307.19.30, HTSUS, as other ductile iron pipe fittings.

The ductile iron corner barb arms are classified under subheading 7325.99.10, HTSUS, as other cast articles of iron.

The grey iron barb arm bases are classifiable under subheading 7325.10.00, HTSUS, as other articles of nonmalleable cast iron.

The grey iron brace rail ends, loop caps, and offset rails are classifiable under subheading 7308.90.90, HTSUS, as articles prepared for use in structures, of iron.

The grey iron post caps are classifiable under subheading 7307.11.00, HTSUS, as tube or pipe fittings, of nonmalleable cast iron.

The grey iron floor flanges are classifiable under subheading 7307.91.50, HTSUS, as other flanges, of iron.

The aluminum post caps and dome post caps are classifiable under subheading 7609.00.00, as aluminum tube or pipe fittings.

The aluminum loop caps and offset rail ends are classifiable under subheading 7610.90.00, HTSUS, as aluminum articles prepared for use in structures.

The ductile iron 180 degree adapters, cantilever rollers, cantilever gate latches, and industrial locking devices, the grey iron gate hold backs and gate center stops, and the aluminum gate corners, butterfly latches, and gate plugs are classifiable under subheading 8302.49.60, HTSUS, as other mountings, fittings, and similar articles, of iron and aluminum, respectively.

With regard to the classification of the ductile iron corner barb arms, the protest should be granted. With regard to the classification of the ductile iron backstop angles, because the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest. With regard to the classification of the remaining ductile iron fence fittings, because the rate of duty under the classification indicated above are the same as the liquidated rate, you are instructed to deny the protest.

With regard to the classification of the grey iron barb arm bases, the protest should be granted. With regard to the classification of the grey iron post caps, you are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. With regard to the classification of the grey iron floor flanges, because the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to deny the protest. With regard to the classification of the grey iron brace rail ends, loop caps, and offset rail ends, because the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest. With regard to the classification of the grey iron gate hold backs and gate center stops, you should deny the protest.

With regard to the classification of the aluminum acorn post caps, dome post caps, loop caps, and offset rail ends, because the rate of duty under the classifications indicated above is the same as the liquidated rate, you are instructed to deny the protest. With regard to the classification of the aluminum gate corners, butterfly latches, and gate plugs, you should deny the protest.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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