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HQ 967978




MARCH 31, 2006

CLA-2 RR:CTF:TCM 967978 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7302.40.0000, 7302.90.9000, 7318.22.0000, 7326.90.8587

Port Director
U.S. Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230

RE: I.A. 05/027; Iron or Steel Components Used in Railway or Tramway Track Construction

Dear Port Director:

This is our decision on Internal Advice 05/027, filed by counsel on behalf of VAE Nortrak Ltd., against your classification of certain components used in railway or tramway track construction under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Drawings, schematics and other materials were submitted. This request relates to a prior disclosure VAE Nortrak filed with your office on September 8, 2005, under the authority of Section 162.74, Customs and Border Protection Regulations (19 CFR §162.74).

FACTS:

The merchandise under consideration consists of various iron or steel articles used in railway track construction and identified as toe blocks, heel blocks, filler blocks, joint bars, drop lugs, cast washers, plates and rail brace assemblies, each consisting of a rail brace, retention block and serrated washer. All components are imported separately.

Toe blocks and heel blocks are cast iron or steel articles that fit snugly between the rails of a crossing frog. Crossing frogs incorporate rail segments and are used at railway crossings to permit rails to intersect one another. Toe blocks and heel blocks are cast with holes passing through them to accommodate bolts that secure the blocks to the rails of the crossing frog. Their function is to securely locate the rails that support the train during the wheel’s passage through a crossing frog.

Filler blocks are cast articles of iron or steel that are drilled with one or more holes to accommodate bolts that secure the blocks and rails together. They function to create a flangeway that allows the flange of a train wheel to pass through areas of a crossing, such as a frog, while providing lateral support on both sides of the wheel flange.

Joint bars, also called fish-plates, are rolled steel articles used to join together sections of rail in railway or tramway track. They contain holes to accommodate the bolting together of a pair of joint bars, one on each side of the two rail ends being joined, to secure and align the rails in place.

Cast iron drop lugs are components of a hollow steel tie assembly used at the interface of the point rods and the switch blades which are crossing pieces. They are bolted to a composite “switch rod” to accommodate the longitudinal movement of switch points caused by thermal expansion.

Cast ductile iron washers, used in the construction of railway trackwork, accommodate bolts passing through an assembly at an angle and offer a flat bearing surface for tightening with a nut.

Plates may either be of cast iron or rolled or formed steel and have other components welded to them. They function to fasten rail or track work to a tie by means of spikes, coach screws or bolts, to secure and support the trackwork.

Finally, rail braces, cast steel retention blocks and serrated washers are imported separately and assembled, after importation, into rail brace assemblies. These assemblies are commonly used in railway crossings and are affixed to the rails to support and stabilize them by increasing their resistance to the force of lateral loads generated by passing trains. The ductile cast iron rail brace fits under the rail head and is secured to a plate on the outside of the track. The retention block is a steel casting that also attaches to the plate and supports and locks the brace in place. The serrated washer is an iron casting that holds and locks the rail brace against the retention block.

The internal advice applicant maintains that the toe blocks, heel blocks, filler blocks and drop lugs, are crossing pieces classifiable in subheading 7302.30.00, HTSUS. He cites NY L85062, dated June14, 2005, and NY F81465, dated January, 24, 2000, which classify what he maintains is substantially similar merchandise in this provision. The internal advice applicant attempts to distinguish NY L85063, dated June 14, 2005, also to support classification of these articles in subheading 7302.30.00, HTSUS. He claims the joint bars, also known as fish-plates, are specially provided for in subheading 7302.40.00, HTSUS. The internal advice applicant also claims that the rail braces, retention blocks and serrated washers are crossing pieces classifiable in subheading 7302.30.00, HTSUS, because rail brace assemblies are essential components of railway crossings. While washers are specially provided for in heading 7318, the internal advice applicant claims the cast washers at issue are so specialized by design and function that they constitute track construction material of heading 7302. Finally, the function of the cast iron or rolled or formed steel plates is to support, locate and fasten the rail or track work to a tie. This is said to be akin to the function of fish-plates and sole plates classifiable in subheading 7302.40.00, HTSUS.

The HTSUS provisions under consideration are as follows:

Railway or tramway track construction material of iron or steel, the following:..,switch blades, crossing frogs, point rods and other crossing pieces, sleepers (cross-ties), fish-platessole plates (base plates)and other material specialized for jointing or fixing rails:

Switch blades, crossing frogs, point rods and other crossing pieces

7302.40.00 Fish-plates and sole plates

7302.90 Other:

7302.90.90 Other

Screws, bolts, washers (including spring washers) and similar articles, of iron or steel:

Non-threaded articles:

Spring washers and other lock washers

7318.22.00 Other washers

7326 Other articles of iron or steel:

7326.90 Other:

Other:

Other:

7326.90.85 Other

ISSUE:

Whether the described articles, or any of them, are railway or tramway track construction material of heading 7302.

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 at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs and Border Protection (or CBP, as appropriate) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The internal advice applicant notes that the subject blocks are used with railway crossing frogs to fix the frog in place or stabilize it to eliminate movement. The claim is that toe blocks and heel blocks are parts of crossing frogs or crossing pieces described in heading 7302, HTSUS. We do not agree with this classification for several reasons. Initially, heading 7302 does not provide for parts. Also, in NY L85062, dated June 14, 2005, certain “frog inserts” used in a crossing at the intersection of two running rails were found to be crossing frogs and other crossing pieces classifiable in subheading 7302.30.00, HTSUS. The toe blocks and heel blocks at issue are identified as being used with crossing frogs but are not crossing frogs or crossing pieces themselves because the train wheels do not pass over or through them. NY F81465, dated January 24, 2000, also cited by the internal advice applicant, correctly classified switch points and switch tips in subheading 7302.30.00, HTSUS. Our technical research indicates the term switch point is synonymous with switch blade an article named in subheading 7302.30.00 as a crossing piece. A switch tip is the planed end of a switch blade or switch point. Switch points and switch tips are themselves crossing pieces whereas, as indicated above, toe blocks and heel blocks are not. However, heading 7302 also provides for other [track construction] material specialized for jointing or fixing rails. The toe blocks and heel blocks are produced to exact specifications to fit the contour of a particular crossing frog and their function is to locate or stabilize, i.e., “fix,” the crossing frog in place. They constitute other material specialized for jointing or fixing rails classifiable in subheading 7302.90.90, HTSUS.

Filler blocks, on the other hand, provide lateral support on both sides of the wheel flange. They are not crossing pieces similar to switch blades, point rods and crossing frogs, nor do they “fix” rails under the above analysis. The drilling of bolt holes is not merely incidental to the casting process. It is an independent and additional operation that advances the filler blocks beyond the condition of castings. See HQ 959315, dated October 1, 1996. The filler blocks are provided for in heading 7326, HTSUS, as other articles of iron or steel.

Joint bars or fish-plates are rolled steel articles, with drilled holes, and used to join together sections of rail in railway or tramway track. Relevant 73.02 ENs describe Fish-plates as “hot-rolled, forged or cast articles of various shapes (flat, shouldered, angled, etc.) used for jointing one rail to the next. They fall in the heading whether or not drilled or punched.” The joint bars are provided for as fish-plates and sole plates, in subheading 7302.40.00, HTSUS.

As stated, drop lugs are used at the interface of the point rods and the switch blades, which are crossing pieces used at the junctions or intersections of the permanent way. Drop lugs are not crossing pieces but parts of crossing pieces. As
noted, heading 7302 does not provide for parts. Also, drop lugs are not used to “fix” rails under the analysis provided above for toe blocks and heel blocks. Although drop lugs are of cast iron, they are further machined to their final shape after casting. As such, drop lugs are not cast articles of heading 7325; rather, they are other articles of iron or steel, provided for in heading 7326.

The cast ductile iron washers have drilled or punched holes and are used in railway track work construction. They must accommodate bolts passing through an assembly and offer a flat bearing surface to hold the head of the bolt in place to prevent turning while being tightened with a nut. The internal advice applicant contends these are not “traditional” washers, but are designed to conform to the profile of the rail to which they are affixed. They have no application other than in track work and, as such, qualify as track construction material of heading 7302. We do not agree. There is no indication of how the washers are “specialized” for jointing or fixing rails for purposes of heading 7302. Moreover, heading 7318 provides, in part, for washers of iron or steel. Relevant 73.18 ENs under (E) describe Washers as “usually small, thin discs with a hole in the centre (spelling original); they are placed between the nut and one of the parts to be fixed to protect the latter. They may be plain, cut, split (e.g., Grower’s spring washers), curved, cone shaped, etc.” The cast ductile iron washers conform to this description.

The plates are identified in submitted drawings as base plates and sleeper plates. They may be of rolled or formed steel or of cast iron and are used in track crossings. They are often machined and have other attachments welded to them. Their function is to locate or stabilize the rail or track component by fastening it to a tie by means of spikes, coach screws or bolts. 73.02 ENs under (5) describe Sole plates “(base plates, sleeper plates)used in fixing flat-bottomed rails to sleepers [cross-ties]. They protect the sleepers and are fixed to them by cramps, bolts, coach screws, spikes or, in the case of steel, by welding.” The plates at issue conform to this description. They are classifiable in subheading 7302.40.00, HTSUS.

Finally, rail braces and retention blocks are components of rail brace assemblies. The rail brace is contoured to attach to a rail to provide support against lateral loads generated by passing trains while the retention block supports and locks the brace in place. Though said to be used in railway crossings, these articles are not compellingly similar to crossing pieces such as crossing frogs and switch blades provided for in subheading 7302.30.00, HTSUS. However, the rail brace is specially designed to fit under the rail head and, together with the retention block, stabilize or secure the rail in place. This qualifies these articles as other material specialized for fixing rails.

Imported separately, the rail brace and the retention block are provided for in subheading 7302.90.90, HTSUS. The serrated washer is a cast article, generally rectangular in shape, with grooves cut along its length and with tabs or ears at each end. Its serrated face interlocks with the matching serrated face of the rail brace to hold and lock the brace against the retention block. The serrated washer works in concert with the rail brace and retention block to permit the rail brace assembly to perform its function of supporting the rails. The serrated washer is likewise provided for in subheading 7302.90.90, HTSUS. We note that this article does not conform to the 73.18 EN description for Washers cited above concerning the cast ductile iron washers.

HOLDING:

Under the authority of GRI 1, the toe blocks, heel blocks, joint bars or fish-plates, cast iron or rolled or formed steel plates, rail braces, cast steel retention blocks and serrated washers are provided for in heading 7302. The joint bars or fish-plates and the cast iron or rolled or formed steel plates are classifiable in subheading 7302.40.0000, HTSUSA. The rate of duty under this provision in 2005 is free. The toe blocks, heel blocks, rail braces, cast steel retention blocks and serrated washers are classifiable in subheading 7302.90.9000, HTSUSA. The rate of duty under this provision in 2005 is free.

The cast ductile iron washers are provided for in heading 7318. They are classifiable in subheading 7318.22.0000, HTSUSA. The rate of duty under this provision in 2005 is free.

The filler blocks and the cast iron drop lugs are provided for in heading 7326. They are classifiable in subheading 7326.90.8587, HTSUSA. The rate of duty under this provision in 2005 is 2.9 percent ad valorem.

You are to mail this decision to the internal advice applicant, through counsel, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to CBP personnel, and to the public on the Customs 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

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