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HQ 963155




FEBRUARY 1, 2000

CLA-2 RR:CR:GC 963155 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7308.40.00

Port Director of Customs
33 New Montgomery Street, Room 1501
San Francisco, CA 94105

RE: Protest 2809-99-100509; Components of a Linear Shoring System

Dear Port Director:

This is our decision on Protest 2809-99-100509, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of trench shoring structural components. The entry under protest was liquidated on April 16, 1999, and this protest timely filed on July 15, 1999.

FACTS:

The merchandise at issue is identified as components of a linear shoring system for use on construction sites as temporary reinforcing or support elements in trenches and excavations. A complete system consists of multiple linear sheeting supports or upright posts, top and base bogie cars, and inside base plates or panels, outer pressure plates, and inner and outer top plates or panels, all of base metal. The plates and panels will be sourced domestically. The upright posts and bogie cars are the subject of this protest. Upright posts are vertical structural members of steel consisting of flat bars, rolled bars and profile bars welded together. Grooves machined along the length of each post accommodates a bogie car that moves on rollers. A bogie car consists of top and base car halves, bolted together in a rectangular configuration with another structural member called a spreader which is sourced domestically and is not a part of this protest. Bogie cars consist of steel flat bars, special shaped bars, an “H” beam, rollers and axes, all welded together with drilled bolt holes for attachment of the spreader. The upright posts are placed on either side of the trench, parallel to each other, and bogie cars run in the vertical plane between them to maintain proper spacing and to complement the lateral support which the inner and outer plates and panels provide.

The structural components were entered under a provision of heading 7308, HTSUS, for columns, pillars, posts, beams, girders and similar structural units, not in part of alloy steel. They were reclassified in liquidation under another provision of heading 7308 for equipment for scaffolding, shuttering, propping or pit-propping.

The HTSUS provisions under consideration are as follows:

7301 Sheet piling of iron or steel, whether or not drilled, punched or made from assembled elements; welded angles, shapes and sections, of iron or steel:

Angles, shapes and sections:

Of iron or nonalloy steel

7308 Structuresand parts of structuresof 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

7308.90 Other:

7308.90.30 Columns, pillars, posts, beams, girders and similar structural units, not in part of alloy steel ISSUE:

Whether the trench shoring structural components under protest are angles, shapes and sections of heading 7301, HTSUS.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. Though not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Counsel for the protestant maintains that the proper classification is in a provision of heading 7301, HTSUS, for angles, shapes and sections, of iron or nonalloy steel. Counsel contends that the goods under protest are essentially similar to assembled sheet piling which the 7308 ENs exclude from that heading and refer to heading 7301. Counsel contends further that unlike the goods under protest, which are for temporary installation, goods of heading 7308, once installed, generally remain in that position.

As to counsel’s claim that the linear sheeting supports and top and base bogie cars are similar to sheet piling of heading 7301, the ENs to that heading, on pp.1099 and 1100, describe sheet piling angle or corner pieces which are sections intended to form corners; joining sheet piling sections with three or four arms for making partition walls; connecting sheet piling sections whose shape enables them to be used for connecting different types of sheet piling; and, sheet piling conduits, corrugated in shape, and columns which are driven into the ground in such a manner that they join together without being forcibly interlocked. Neither the linear sheeting supports nor the top and base bogie car halves conform to this EN description. Therefore, the goods do not meet the terms of heading 7301, as sheet piling.

As to counsel’s claim as angles, shapes and sections under heading 7301, the ENs to that heading refer on p.1100 to welded angles, shapes and sections, without further explanation, and state the Explanatory Note to heading 72.16 applies, by appropriate substitution of terms, to profiles obtained by welding. Initially, Chapter 72, Note 1(n), HTSUS, states in part that angles, shapes and sections have a uniform solid cross-section along their whole length. The heading 7216 ENs on p. 1089 state that the sections most commonly falling in that heading are H, I, T capital omega, Z and U (including channels), obtuse, acute and right (L) angles. The ENs continue by stating angles, shapes and sections are usually produced by hot-rolling, not-drawing, hot-extrusion or hot-forging or by forging blooms or billets. The angles, shapes and sections of heading 7301, for example the Is, Ls or Ts, have the same types of cross-sectional configuration as do those of heading 7216, except the component parts for those of heading 7301 are joined by welding. An “L” shape of heading 7301, for example, would be made by welding together the two separate legs of the angle. Neither the linear sheeting supports nor the top and base bogie car halves are constructed in this manner, as described by the 7216 ENs. Therefore, the goods do not meet the terms of heading 7301 as welded angles, shapes and sections.

As to the liquidated provision, subheading 7308.40.00, the ENs to heading 7308 state on p. 1108 that once they are put in position the metal structures of that heading generally remain in that position. This indicates to us that temporary reinforcing or supporting elements may also be included if they qualify as incomplete structures or parts thereof. The ENs continue by stating the goods of heading 7308 are made up from bars, rods, tubes, angles, shapes, sections, plates, etc., by bolting, riveting, etc. The linear sheeting supports and top and base bogie cars meet this description as they are “made up” from bars and other structural components and the bogie car halves are welded together. Apart from the structures and parts thereof identified in the 7308 heading text, the ENs list pit head frames and superstructures together with tubular scaffolding and similar equipment. The articles under protest perform a support or reinforcing function, and therefore qualify as equipment for propping or pit propping identified in subheading 7308.40.00, HTSUS.

HOLDING:

Under the authority of GRI 1, the linear sheeting supports or upright posts and the top and base bogie cars are provided for in heading 7308. They are classifiable in subheading 7308.40.00, HTSUS.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing 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.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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