CLA-2 OT:RR:CTF:TCM H024215 HkP
Joshua Fitzhugh, Esq.
Pillsbury Winthrop Shaw Pittman, LLP
2300 N Street, NW
Washington, DC 20037
RE: Tariff Classification of Radiation Shielding Panels
Dear Mr. Fitzhugh:
This is in response to a request, received in this office on February 11, 2008, requesting a binding ruling on behalf of Premier Technology, Inc (“Premier”). At issue is the correct classification of certain radiation shielding panels under the Harmonized Tariff Schedule of the United States (“HTSUS”). Premier previously requested a ruling on the classification of this merchandise from the National Commodity Specialist Division of U.S. Customs and Border Protection (“CBP”) in a letter dated September 17, 2007, but that letter was returned to the company with a request for further information. In a letter dated November 26, 2007, Premier provided the requested information to CBP.
FACTS:
According to the submitted information, the panels at issue form the interior and exterior surfaces of a plutonium processing tank and serve to absorb neutrons released from the plutonium contained in the tank. Each shielding panel is composed of a concrete core surrounded by an inner and outer shell of 304L stainless steel. The inner and outer shells are pre-cut, rolled, welded, and fabricated into the shapes and dimensions required for each custom-designed tank. The concrete is made of cement mixed with colemanite aggregate to absorb the neutron radiation emanating from materials within the tank. Colemanite is a mineral that contains boron and occurs naturally in crystalline form. Elemental boron is used in atomic reactors and in high-temperature technologies because of its low density, extreme hardness, high melting point, and remarkable tensile strength in filament form. The concrete core accounts for approximately 95 percent of the panels by weight and bulk. The concrete core is approximately 150 mm thick and the stainless steel shells are each approximately 5 mm thick.
After importation, the panels are assembled into cylindrical internal and external radiation shields which surround the inner and outer surfaces of the plutonium processing tank assemblies. The shields are then secured around the tank with various fittings and spacers. The bottom surface of a completed tank assembly is comprised of the inner vessel of the tank assembly, which is welded to a steel base plate, and the shields which are bolted to the same base plate. The entire tank assembly is then attached to a steel tank skirt and welded to a steel embedment in the floor of the facility.
By email dated February 22, 2008, in response to our request for clarification on the purpose of the stainless steel components of the panels, you informed CBP that the steel shells are the form into which the concrete is poured and also serve as the means by which the concrete core is attached to other things such as the floor and other shield panels. You stated that there was no other purpose for the steel shell.
In your November 26, 2007, submission you contend that the panels are properly classified in subheading 6810.91.0000, HTSUSA, which provides for: “Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Prefabricated structural components for building or civil engineering.” In the alternative, you submit that the radiation shielding panels are classifiable under heading 7309, HTSUS, as an unassembled reservoir, tank, vat or similar container of iron or steel, by application of GRI 2(a). In your original submission, dated September 17, 2007, you also argued that the merchandise at issue could be properly classified under heading 7308, HTSUS, as a part of a structure, of iron or steel.
ISSUE:
What is the correct classification of the radiation shielding panels?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced:
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Other articles:
6810.91.0000 Prefabricated structural components for building or civil engineering …..
6810.99.00 Other …..
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6810.99.0080 Other …..
7308 Structures (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:
* * *
7308.90 Other:
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Other:
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7308.90.95 Other …..
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Other:
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7308.90.9590 Other …..
7309.00.00 Reservoirs, tanks, vats and similar containers for any material (other than compressed or liquefied gas, of iron or steel, of a capacity exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment …..
7309.00.0030 Tanks ….
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
EN 68.10 provides, in relevant part:
This heading covers moulded, pressed or centrifuged articles (e.g., certain pipes) of cement (including slag cement), of concrete or of artificial stone, other than those of heading 68.06 or 68.08 (in which cement is merely a binder), or heading 68.11 (articles of asbestos-cement).
This heading also covers prefabricated structural components for building or civil engineering.
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The heading includes, inter alia, blocks, bricks, tiles; …beams; hollow flooring slabs and other constructional goods; …troughs, vats, reservoirs[.]
* * *
The articles of this heading may be bushed, ground, polished, varnished, bronzed, enamelled, made to imitate slate, moulded or otherwise ornamented, coloured in the mass, reinforced with metal, etc. (e.g. reinforced or pre-stressed concrete), or fitted with accessories of other materials (e.g. hinges, etc.).
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Subheading Explanatory Note
Subheading 6810.91
This subheading covers prefabricated structural components for building or civil engineering, such as facing panels, interior walls, floor or ceiling sections, foundation components, pilings, tunnel sections, components for lock-gates or dams, gangways, cornices. These components, generally of concrete, usually have devices for facilitating their assembly.
EN 73.08 provides, in relevant part:
This heading covers complete or incomplete metal structures, as well as parts of structures. For the purpose of this heading, these structures are characterised by the fact that once they are put in position, they generally remain in that position.
EN 73.09 provides, in relevant part:
These containers are normally installed as fixtures for storage or manufacturing use, e.g., in factories, chemical works, dye works, gasworks, breweries, distilleries and refineries, and to a smaller extent in houses, shops, etc.
As an initial matter, we note that the panels at issue are composite goods because they consist of different components, namely, concrete and steel. No single heading describes the panels in their entirety. The headings under consideration provide for goods of concrete or of iron or steel. Therefore, they cannot be classified according to GRI 1. GRI 3(b) directs that composite goods consisting of different materials shall be classified as if they consisted of the material or component which gives them their essential character. EN (VIII) to GRI 3(b) explains that the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
According to the submitted information, the concrete core of the panel is a mixture of cement and colemanite aggregate, the properties of which shields against radiation emitted from plutonium contained in the tank assembly. The concrete core accounts for approximately 95% of a shield panel, by weight and by bulk and is approximately 150 mm thick. On the other hand, each inner and outer shell of grade 304L stainless steel is approximately 5mm thick. Grade 304L stainless steel is the low carbon version of standard 18/8 stainless steel, which is the most widely used type of stainless steel. The shells are the form into which the concrete mixture is poured and determine the shape that the concrete takes. The shells are also the means by which the panel is affixed to the tank assembly; they are bolted into place around the inner vessel/tank on the same base plate which forms the bottom of the tank assembly.
Based on all the foregoing factors, we find that the essential character of the panels is imparted by the concrete by virtue of its bulk, weight and value, as well as its role in shielding against radiation, which is the purpose for which the panels are used. Therefore, the panels are classifiable in heading 6810, HTSUS, as articles of concrete.
Both heading 7308 and 7309, HTSUS, provide for types of articles of steel. Based on the essential character of the panels, i.e., concrete, we find that these headings do not describe the goods at issue. As heading 6810, HTSUS, is the provision in which you contend the panels are classified, and we are in agreement, your arguments concerning classification in heading 7308 and 7309, HTSUS, need not be addressed.
Heading 6810, HTSUS, provides for articles of cement, of concrete or of artificial stone, whether or not reinforced. Based on the essential character analysis previously performed, we find that the panels are provided for in heading 6810, HTSUS, because they are described by the terms of the heading and are not otherwise excluded by virtue of any Legal Note. Furthermore, EN 68.10 explains that articles of the heading may be fitted with accessories of other materials.
You argue that subheading 6810.91.0000, HTSUSA, which provides for prefabricated structural components for building or civil engineering, is the most appropriate classification for the panels because they are described by the terms of that subheading. You further argue that the panels are similar to the exemplars listed in Subheading Explanatory Note 6810.91 found in EN 68.10.
Neither the expression “building engineering” nor the expression “civil engineering” is defined in the HTSUS or in the Explanatory Notes for heading 6810. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). McGraw-Hill Encyclopedia of Science and Technology defines “civil engineering” as “[a] branch of engineering that encompasses the conception, design, construction and management of residential and commercial buildings and structures, water supply facilities, and transportation systems for goods and people, as well as control of the environment for the maintenance and improvement of the quality of life.” Based on our research, we understand that the term “building engineering” is used interchangeably with “civil engineering”.
To determine if the panel panels at issue are prefabricated structural components for building or civil engineering, it is necessary to determine whether the plutonium processing tank is a structure of which the panels are structural components. The Merriam-Webster Online Dictionary defines “structure”, in relevant part, as:
2 a : something (as a building) that is constructed[.]
The same source defines “structural” and “component”, in relevant part, respectively, as:
2 b : used in building structures[.]
1 : a constituent part : INGREDIENT[.]
From the Oxford English Dictionary Online, Second Edition 1989 (Oxford University Press 2008), these terms are defined, in relevant part, as follows:
structure, n.
concr. That which is built or constructed. a. A building or edifice of any kind, esp. a pile of building of some considerable size and imposing appearance.
* * *
c. Buildings collectively.
In a wider sense: A fabric or framework of material parts put together.
structural, a.
Of or pertaining to structure.
a. Of or pertaining to the art or practice of building. Chiefly in structural iron, steel, iron or steel intended for building construction.
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2. Of or pertaining to the structure of a building as distinguished from its decoration or fittings. structural load . . . structural engineering, the branch of civil engineering concerned with large modern building and other structures; . . . .
component, . . . n.
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a. A constituent element or part.
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The court has examined the meaning of the term “structure” in S.G.B. Steel Scaffolding & Shoring Co., Inc. v. United States, 82 Cust. Ct. 197 (1979) (hereinafter S.G.B. Steel) wherein it noted that tariff language is construed according to its common meaning. See Id. at 211. The court went on to state with regard to the meaning of the term “structure” that in a prior opinion, the court acknowledged “there is no precise definition of the term ‘structure[.]’” The definitions cited above would seem to support the court’s view.
In S.G.B. Steel, the court cited earlier cases wherein the meaning of the term “structure” had been examined and the various definitions from lexicographic sources cited by the plaintiff. The merchandise at issue in S.G.B. Steel consisted of shore frame systems described as comprising a number of components fitted and used together for various supporting or load-bearing purposes. The decision notes that shore frame systems are used to: “Support formwork for concrete construction until the wet concrete hardens; . . . ; support sidewalk bridges; . . .; support for temporary bridging between buildings for transportation of men and materials; scaffolding . . . .” S.G.B. Steel, at 203. The court found the shore frame systems to fit within the meaning of the term “structure” for purposes of the superior language to items 652.90 – 652.98, which provided for, in relevant part, “Hangars and other buildings, bridges, bridge, sections, . . . , and other structures and parts of structures, all the foregoing of base metal[.]”
In Headquarters Ruling Letter (HQ) 950408, dated January 3, 1992, CBP (then, U.S. Customs Service) classified scaffold clamps or couplers as parts of structures in heading 7308, HTSUS, noting the decision in S.G.B. Steel. In HQ 959577, dated February 11, 1997, banks of laying cages were stated to be “within the common meaning of the term structure for purposes of heading 7308.” Again, S.G.B. Steel was cited in making this decision.
Considering the physical dimensions of the subject shield panels and the construction of the tank assemblies as described in the submission, including the permanent welding to the floor of the facility, we agree that the tank assemblies when fully assembled with the radiation shield panels are structures and therefore the shield panels are prefabricated structural components. This would accord with our view of the meaning of the term “structure” in another provision of the HTSUS, i.e., heading 7308, as reflected by the rulings cited herein and with the court’s discussion of the term “structure” in S.G.B. Steel.
However, to be classified in the subheading proposed, i.e., subheading 6810.91, HTSUS, the shield panels must also be for “building or civil engineering.” We have examined the meaning of the terms “building engineering” and “civil engineering” as noted above, however, other than asserting that the shield panels are similar to the exemplars listed in the subheading explanatory note for subheading 6810.91, the ruling request lacks any substantive arguments to support classification of the shield panels in subheading 6810.91, HTSUS, as “prefabricated structural components for building or civil engineering.” As such, there is insufficient evidence to support the claim that they are covered by the terms of subheading 6810.91.0000, HTSUSA. Based on the foregoing, we find that the panels are provided for in subheading 6810.99.0080, HTSUSA.
HOLDING:
By application of GRI 3(b), the radiation shielding panels are classified in heading 6810, HTSUS. They are specifically provided for in subheading 6810.99.0080, HTSUSA, which provides for: “Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other articles: Other: Other.” The 2008 column one, general rate of duty is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch