CLA-2 RR:TC:MM 958525 JAS
Port Director of Customs
477 Michigan Avenue
Detroit, Michigan 48226
RE: I.A. 45/95; Ice Rink Barrier, Spectator Shield System, Acrylic Plastic Shields, Tempered Glass Shields, Polyethylene Covered Aluminum or Steel Frames, Bumpers, Gaskets, Connecting Hardware; Upper Board System, Lower Board System, Dasher Board System; Composite Goods, Essential Character, GRI
3(b), 3(c)
Dear Port Director:
Your memorandum to us, dated August 28, 1995 (CLA-2-CO:CT WP), initiated at the request of the broker for Crystaplex Arenas, Mississauga, Ontario, Canada, seeks internal advice on components of barrier systems for ice arenas and rinks. Many of the competing provisions under consideration provide preferential tariff treatment under the North American Free Trade Agreement (NAFTA), for goods originating in the territory of a NAFTA party, but no specific NAFTA issue has been raised.
FACTS:
The merchandise in issue consists of various components that provide a safety shield or barrier system for ice arenas and rinks. The merchandise is imported in three (3) configurations, the Upper Board System (UBS), the Lower Board System (LBS), and the complete Dasher Board System (DBS).
The UBS consists of shields either of tempered safety glass or acrylic/plexiglass, aluminum extrusions/supports and plastic gaskets. The shields are from 24 to 96 inches high and 48 inches wide, and protect spectators by deflecting hockey pucks and other debris from the rink area, while the aluminum extrusions are channels that support the shields. The LBS consists either of aluminum or steel frames covered with polyethylene, and connecting hardware. They function as the base that rests on the - 2 -
ice and onto which the UBS is fitted to complete the barrier that separates th spectator area from the rink area. They not only provide support for the glass shields of the UBS but are strong enough to withstand the impact from hockey players and other skaters.
The DBS consists of the UBS and the LBS combined. The importer contends that each component is a composite good consisting of different materials or made up of different components that must be classified according to the material or component that imparts the essential character to the whole. The claim is that the glass shields impart the essential character to the UBS, while the polyethylene panels impart the essential character to both the LBS and the DBS. You agree with the importer's contentions. It is important to note, however, that the LBS does not consist of polyethylene panels or frames, as the importer claims. In a letter to its broker, dated January 10, 1995, the Canadian manufacturer/importer states that these panels or frames are of aluminum or steel covered with polyethylene.
The provisions under consideration are as follows:
3925 Builders' ware of plastics, not elsewhere specified or included:
3525.90.00 Other...5.3 percent; 1.5 percent (CA) under NAFTA
* * * *
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.98 Other...5.3 percent; 1.5 percent (CA) under NAFTA
* * * *
7007 Safety glass, consisting of toughened (tempered) or laminated glass:
7007.19.00 Other...6 percent; Free (CA) under NAFTA
* * * *
7020.00.00 Other articles of glass...6.3 percent; 1.9 percent (CA) under NAFTA
* * * * - 3 -
7326 Other articles of iron or steel:
7326.90 Other:
Other:
7326.90.85 Other...5.1 percent; 1.7 percent (CA) under NAFTA
* * * *
7616 Other articles of aluminum:
7616.90 Other:
7616.90.00 Other...5.1 percent; 1.7 percent (CA) under NAFTA
ISSUE:
Whether the UBS, LBS and DBS are composite goods; whether an essential character for any or all of them can be determined.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined 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. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Because the UBS, LBS and DBS each consist of more than one material or substance they must be classified according to GRI 3, HTSUS. Pursuant to GRI 3(a), there is no heading which provides a specific description for the merchandise. Pursuant to GRI 3(b), composite goods consisting of different materials or made up of different components, shall be classified as if consisting of the material or component - 4 -
which gives them their essential character, insofar as this criterion is applicable. GRI 3(c) states that when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
Relevant ENs, at p. 4, state under RULE 3(b) (IX) that for purposes of Rule 3(b), composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. The components of both the UBS and the LBS are mutually complementary and are not believed to be of the type normally offered for sale in separate parts. Likewise, the DBS consists of two components, the UBS and the LBS, which likewise are mutually complementary and are of commercial value only in combination. The UBS, LBS and DBS conform to the description in the cited ENs and are to be treated as composite goods. The same ENs state that the factor or factors which determine essential character vary with the goods. It may, for example, be determined by the nature of the component, its bulk, quantity, weight or value, or its role in relation to the use of the goods. No cost or value information is available on the completed articles.
With respect to the UBS, the aluminum extrusions or supports provide the means of stabilizing the glass shields and attaching them to the LBS. However, it is the glass shields themselves that protect spectators from hockey pucks and soccer balls in the case of indoor soccer, from ice kicked up by skaters, and even players themselves, while at the same time not obstructing vision. We conclude that the glass shields impart the essential character to the UBS.
With respect to the LBS, the polyethylene covering on the frame prevents injury to the players and damage to the LBS itself. However, it is the base metal which imparts size, form and shape to the whole, and provides the strength not only to withstand high-speed impacts, but which supports the weight of the UBS as well. We conclude it is the aluminum or steel which imparts the essential character to the LBS.
Our analysis of the UBS and the LBS is also applicable with respect to the complete DBS. While, for the reasons stated, it is possible to identify a component that imparts the essential character to the separately imported components of the DBS, there is no basis on which to conclude that any single material or component of the DBS - the polyethylene, the glass shields or the aluminum or steel frames - is more essential than the other components. For this reason, we conclude that the DBS is to be classifiable pursuant to GRI 3(c). - 5 -
HOLDING:
Under the authority of GRI 3(b), HTSUS, the UBS in which the shields are of plexiglass, is provided for in heading 3926. It is classifiable in subheading 3926.90.98, HTSUS. If the shields are either thermally toughened or subjected to appropriate physical-chemical treatments which render them tempered safety glass, the UBS is provided for in heading 7007, and is classifiable in subheading 7007.19.00, HTSUS. If the glass shields are not of tempered safety glass, the UBS is provided for in heading 7020, and is classifiable in subheading 7020.00.00, HTSUS.
Under the authority of GRI 3(b), the LBS in which the frame is of steel, is provided for in heading 7326. It is classifiable in subheading 7326.90.85, HTSUS. If the frame is of aluminum, the LBS is provided for in heading 7616. It is classifiable in subheading 7616.90.00, HTSUS.
Under the authority of GRI 3(c), if the frames are of steel, the DBS is provided for in heading 7326, and is classifiable in subheading 7326.90.98, HTSUS. If the frames are of aluminum, the DBS is provided for in heading 7616, and is classifiable in subheading 7616.90.00, HTSUS.
You should mail this decision to the internal advice applicant, through its representative, 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 Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division