CLA-2 RR:CTF:TCM 968176 JAS
Port Director
U.S. Customs and Border Protection
112 W. Stutsman Pembina, ND 58271
RE: Protest 3401-06-100012; Architectural Bollard
Dear Port Director:
This is our decision on Protest 3401-06-100012, filed by UPS Supply Chain Solutions on behalf of Reliance Foundry Co., Ltd., against your classification of architectural bollards under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
The goods were entered under a provision of heading 7616, HTSUS, as other articles of aluminum. The entry was liquidated on December 21, 2005, under this provision. This protest was timely filed on February 27, 2006. The protestant maintains that the goods are provided for in heading 7308, HTSUS, as columns, pillars, posts, beams, girders, and similar structural units, of iron or steel.
FACTS:
The merchandise is architectural bollards with round ball top, model R7539. This bollard is an ornamental post of ASTM A536 grade cast ductile iron. It stands 36 inches high with a 10-inch diameter base. Bollards fit over threaded studs anchored in the pavement and serve as security barriers, anti-ram posts, for use in traffic and vehicular control or for stand-alone decorative purposes. They may or may not be supplied with chain eyes for use with connecting chains. The bollard at issue is black powder coated which is a technique for applying dry paint to a part.
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The HTSUS provisions under consideration are as follows:
Structures…and parts of structures…of iron or steel; plates, rods,
angles, shapes, sections, tubes and the like, prepared for use in
structures, of iron or steel:
Other:
Columns, pillars, posts, beams, girders, and similar structural
units:
7308.90.60 Other
* * * *
7325 Other cast articles of iron or steel:
7325.10.00 Of nonmalleable cast iron
* * * *
Other articles of iron or steel:
Other:
Other:
Other:
7326.90.85 Other
ISSUE:
Whether bollards are parts of structures of heading 7308; whether they have been advanced beyond casting.
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.
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding and, therefore not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the Harmonized System. U.S. Customs and Border Protection believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The protestant asserts classification under heading 7308, HTSUS, as columns, pillars, posts and similar structural units, of iron or steel. However, no argument is made to support this classification. Nevertheless, in HQ 967415, dated August 1, 2005, noted that the term structure in heading 7308 is not defined in the HTSUS or described in the ENs. Therefore, the term is to be construed in accordance with its common and commercial meaning, which are presumed to be the same. After examining numerous lexicographic sources HQ 967415 concluded that a structure is a “complex system consisting of a number of different parts or sections.” The bollard at issue is neither a structure under the common and commercial meaning of the term, nor as a stand-alone article is it part of a larger complex system that would be considered a structure. The bollard is not described by heading 7308.
Heading 7325, HTSUS, provides for other cast articles of iron or steel. The heading 7325 ENs list bollards among the articles covered by that heading. Therefore, bollards that are cast articles are provided for in heading 7325. However, these ENs also state the heading does not cover castings which are products falling in other headings of the Nomenclature. Therefore, the issue is whether the bollard at issue has been advanced beyond a casting of heading 7325 by virtue of its being powder coated.
As to what processes are sufficient to advance a cast article of iron or steel, of heading 7325, into an article of iron or steel of heading 7326, HQ 963283, dated May 11, 2000, states in relevant part as follows “Customs longstanding position on the issue of advancements to castings is that the casting process is considered complete when, after the casting solidifies and cools, surface imperfections are removed by blast cleaning, chipping, burning or combinations of these processes. Certain independent and additional processes not merely incidental to the general foundry work are considered to advance an article beyond casting.” HQ 963283 concluded that hot dipped galvanizing a cast article to inhibit rust has been held to be not incidental to general foundry work and to sufficiently advance an article beyond casting, citing
HQ 959315, dated October 1, 1996, aff’d. by HQ 960440, dated June 26, 1997.
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In this respect, powder coating is described on www.finishing.com, the home page of the finishing industry. Powder coating is stated to be a finishing operation. It is a technique for applying dry paint to a part either for decorative purposes or for protection and for interior or exterior applications. The process utilizes thermoplastic powders that will melt when heated and thermosetting powders that will not melt upon reheating. In normal wet painting such as house paints, the solids are in suspension in a liquid carrier, which must evaporate before the solid paint coating is produced. In powder coating the article may be lowered into a fluidized bed of the powder, which may or may not be electrostatically charged or the powdered paint is electrostatically charged and sprayed onto the part. To obtain the final solid, tough, abrasion-resistant coating the powder coated articles are placed in an oven and the powder particles allowed to melt and coalesce to form a continuous film. The final coating is continuous and will vary from high gloss to flat matt depending on the design of the powder by the supplier.
It is evident that powder coating is an independent and additional process not merely incidental to general foundry work. We conclude that it is an advancement beyond casting. Cast bollards that are powder coated have been advanced beyond castings of heading 7325 into articles of iron or steel of heading 7326.
HOLDING:
Under the authority of GRI 1, the architectural bollard with round ball top, model R7539, is provided for in heading 7326. It is classifiable in subheading 7326.90.8587, HTSUSA. The rate of duty under this provision in 2005 is 2.9 percent ad valorem. Since this rate is higher than the liquidated rate in subheading 7616.99.50, HTSUS, you should reclassify the merchandise in subheading 7326.90.8587, HTSUSA, and DENY the protest.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings
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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,
Robert Altneu
for Myles B. Harmon, Director
Commercial and Trade Facilitation Division