CLA-2 OT:RR:CTF:TCM H192951 TNA
Port Director, Chicago Service Port
U.S. Customs and Border Protection
5600 Pearl Street Rosemont, IL 60018
Attn: Jeffrey Kiekenbush, Import Specialist
Re: Application for Further Review of Protest No. 3901-11-100944; Classification of a support bracket, brace foot, corner pusher support and door hinge for railcars
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3901-11-100944, timely filed on September 12, 2011, on behalf of CMN Components (“CMN” or “Protestant”). The AFR concerns the classification of a support bracket, brace foot, corner pusher support and door hinge for railcars under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of four assembly pieces, all made of steel and intended for use with railway cars. Drawings of the subject merchandise that were submitted with Protest No. 3901-11-100944 show these items being used on the outside of the railway cars.
Item MP-035 is a support bracket used on a bulkhead flat car. It is a deck and load containment assembly component that is retro-fitted onto older railcars to strengthen the deck of the flatcar and to contain round stock lading- i.e., to eliminate twist in the structure of the car. It is also used to prevent round stock from rolling off the railcar. Item GM-0406 is a diagonal brace foot used on hopper railcars. It is used to transfer load from the lower cross ridge structure to an upper level reinforced side location of the railcar, and to stabilize the sides of the car by preventing outward deflection of the sides of the car once the car is loaded.
Item 10314-040 is a corner pusher support that is used on a Bottom Discharge/ Rotary Dump or Twin Tub/ Rotary Dump Open Top Hopper railcars. It is used to transfer vertical loads realized by the top chords, the structural parts at the top of the railcar, to the lower side sill corner position of the railcar, the structural parts at the bottom of the railcar. In addition to transferring loads, this piece structurally supports the railcar when it is inverted. The drawing of Item 10314-040 submitted with this protest shows this item affixed to the bottom corners of a railway car, and being used to support the structure of the car.
Item 10305-182 is a door hinge used on rapid discharge open-top hopper railcars. It is used to connect the discharge pan to the railcar body to support the lading weight of the railcar. The shape of the hinge uses thick, deep channels to prevent deflection of the pan while retaining the torsional rigidity of the railcar while the pans are mated against the hopper chutes. The angle of the hinge allows the pan to swing in a cammed motion about the pinned axis. The drawing of Item 10305-182 submitted with this protest show that this item is used in 32 places around the outside of a railway car.
The subject merchandise entered on June 9, 2011, under subheading 8607.91.00, HTSUS, which provides for “Parts of railway or tramway locomotives or rolling stock: Other: Of locomotives.” The port liquidated the merchandise on September 9, 2011. Item 10305-182 was reclassified in subheading 8302.10.60, HTSUS, as “Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof: Hinges, and parts thereof: Of iron or steel, of aluminum or of zinc: Other.” The other items were reclassified in subheading 8302.49.60, HTSUS, as “Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof: Other mountings, fittings and similar articles, and parts thereof: Other: Other: Of iron or steel, of aluminum or of zinc.” The importer filed this protest and AFR on September 12, 2011, claiming classification under subheading 8607.99.10, HTSUS, which provides for “Parts of railway or tramway locomotives or rolling stock: Other: Other: For vehicles of heading 8605 or 8606, except brake regulators.”
ISSUE:
Whether a support bracket, brace foot, corner pusher support and door hinge for railcars are classified in heading 8302, HTSUS, as base metal mountings for coachwork, or in heading 8607, HTSUS, as parts railway or tramway locomotives or rolling stock.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 3901-11-100944 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) and (b) because the protested decision is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise; it is also alleged that the protested decision involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, the Protestant argues that classification in heading 8302, HTSUS, conflicts with NY F88353, dated June 1, 2000, and that no ruling exists that addresses the question of law of whether heading 8302, HTSUS, applies to railway freight cars.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
8302 Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof:
8607 Parts of railway or tramway locomotives or rolling stock:
Note 2 to Section XV, HTSUS, of which Chapter 83, HTSUS, is a part, provides, in pertinent part, the following:
Throughout the tariff schedule, the expression “parts of general use” means: …
(c) Articles of heading 8301, 8302, 8308 or 8310 and frames and mirrors, of base metal, of heading 8306.
Note 2 to Section XVII, HTSUS, of which Chapter 86, HTSUS, is a part, states, in pertinent part, the following:
The expressions “parts” and “parts and accessories” do not apply to the following articles, whether or not they are identifiable as for the goods of this section: …
(b) Parts of general use, as defined in note 2 to section XV, of base metal (section XV) or similar goods of plastics (chapter 39);
Note 3 to Section XVII, HTSUS, states the following:
References in chapters 86 to 88 to “parts” or “accessories” do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those chapters. A part or accessory which answers to a description in two or more of the headings of those chapters is to be classified under that heading which corresponds to the principal use of that part or accessory.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 8302, HTSUS, states, in pertinent part, the following:
This heading covers general purpose classes of base metal accessory fittings and mountings, such as are used largely on furniture, doors, windows, coachwork, etc. Goods within such general classes remain in this heading even if they are designed for particular uses (e.g., door handles or hinges for automobiles). The heading does not, however, extend to goods forming an essential part of the structure of the article, such as window frames or swivel devices for revolving chairs.
The heading covers:…
(C) Mountings, fittings and similar articles suitable for motor vehicles (e.g., motor cars, lorries or motor coaches), not being parts or accessories of Section XVII. For example : made up ornamental beading strips; foot rests; grip bars, rails and handles; fittings for blinds (rods, brackets, fastening fittings, spring mechanisms, etc.); interior luggage racks; window opening mechanisms; specialised ash trays; tail board fastening fittings.
The EN to heading 8607, HTSUS, states, in pertinent part, the following:
This heading covers parts of railway or tramway locomotives or rolling stock, provided the parts fulfil both the following conditions:
(i) They must be identifiable as being suitable for use solely or principally with the above mentioned vehicles;
(ii) They must not be excluded by the provisions of the Notes to Section XVII.
Parts of railway or tramway locomotives or rolling stock include:…
(7) Coupling gear (e.g., hook, screw or chain type, draft gears); some coupling devices may be automatic.
(8) Frames and parts thereof (longerons, cross girders, axle-box guides, etc.); frames cast in one piece….
(10) Bodies (not mounted on underframes) for motorised or non self propelled railway or tramway rolling stock (e.g., for coaches, trucks, wagons, etc.); parts of such bodies (e.g., coach or truck doors, partitions, hinged sides of wagons, side stanchions, running boards, water tanks for tenders)….
It should be noted, however, that angles, shapes, sections, sheets, plates and other parts of frames, and also tubes and pipes, etc., of base metal, remain classified in Section XV unless they have been worked to such an extent that they are clearly identifiable as parts of locomotives or rolling stock.
The term “parts of general use” includes merchandise of heading 8302, HTSUS. See Note 2 to Section XV, HTSUS. “Parts of general use” are excluded from classification in heading 8607, HTSUS. See Note 2 to Section XVII, HTSUS. As a result, we begin by examining whether the subject merchandise is classified in heading 8302, HTSUS.
Heading 8302, HTSUS, provides for base metal mountings, fittings and similar articles suitable for coachwork or the like. In HQ W967544, dated June 24, 2005, CBP defined the terms “mountings” and “fittings.” There, because the HTSUS and ENs did not define these terms, CBP consulted lexicographic sources and stated that:
Webster’s New World Dictionary, Second College Edition, 1974 defines the word fitting as: ...2. a small part used to join, adjust, or adapt other parts, as in a system of pipes 3. [pl.] the fixtures, furnishings or decoration of a house, office, automobile, etc.”
“The web site Dictionary.com defines the word mounting when used as a noun as: 1. The act or manner of mounting. 2. A means of conveyance, such as a horse, on which to ride. 3. An opportunity to ride a horse in a race. 4. An object to which another is affixed or on which another is placed for accessibility, display, or use, especially: a. A glass slide for use with a microscope. b. A hinge used to fasten stamps in an album. c. A setting for a jewel. d. An undercarriage or stand on which a device rests while in service.”
See HQ W967544. See also HQ H076723, dated November 24, 2010.
Furthermore, in Totes, Inc. v. United States, 69 F.3d 495 (Fed. Cir. 1995), the Federal Circuit stated that “as applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms.” Totes, 69 F.3d. 495, 498. CBP has applied the doctrine of ejusdem generis to heading 8302, HTSUS, to determine that railway vehicles, aircraft, and vessels share the essential characteristics or purposes with coachwork because they are all used for transport. In HQ 953376, dated May 14, 1993, for example, CBP stated that “although not specifically named, boat fittings would be included within the heading, because boats are for water conveyance which is similar to land conveyance by automobiles.” See HQ 953376. See also HQ H076723; HQ 950059, dated October 21, 1991; HQ 956998, dated November 28, 1994; HQ 959963, dated June 10, 1997; HQ 088944, dated July 22, 1991. As a result, fittings for railway vehicles, aircraft and vessels are classified in heading 8302, HTSUS.
In addition, EN 83.02 states that this heading does not extend to goods forming an essential part of the structure of the article, such as window frames or swivel devices for revolving chairs. See EN 83.02. Prior rulings where CBP has classified mountings and fittings with some structural significance in heading 8302, HTSUS, those articles’ structural significance was subordinate to their mounting/attachment function. In HQ H047742, dated September 3, 2009, for example, CBP classified an upper strut mount/bearing plate, which was part of an automobile’s strut, in heading 8302, HTSUS. This item served to mount the strut and also allowed the strut to pivot, dampened movement of the upper end of the strut, and transferred vehicle load to the strut and spring. Furthermore, it was the strut that provided the structural support for an automotive suspension system. Thus, the mount/bearing plate served the functions of merchandise of heading 8302, HTSUS- i.e., attaching, securing, fitting, supporting or binding two articles together- without, by itself, providing the structural support for the suspension system. See HQ H047742. See also HQ 959052, dated May 17, 1996 (classifying base metal motor vehicle brackets are used throughout the entire vehicle to hold and/or support various components and parts in heading 8302, HTSUS); HQ 958784, dated May 17, 1996 (classifying iron and steel mounting brackets and assembly brackets for motor vehicles in heading 8302, HTSUS); HQ H025860, dated November 20, 2009 (classifying cast iron brackets used to secure an engine to an automobile chassis in heading 8302, HTSUS).
In the present case, Item 10305-182 is a hinge that connects the discharge pan to the railcar body to support the lading weight of the railcar. The shape of the hinge prevents deflection of the pan while retaining the torsional rigidity of the railcar while the pans are mated against the hopper chutes. As such, it is used to join or adapt components in that it acts to hold parts of freight cars together. It is also used with railway cars. Thus, it is ejusdem generis with the items enumerated eo nomine in heading 8302, HTSUS. Furthermore, Item 10305-182, like the mount/bearing plate of HQ H047742, supports another item of the railway car, and it is this other item that provides structural support for the railway car. As a result, Item 0305-182 is described by the terms of heading 8302, HTSUS.
This is in contrast to Items MP-035, GM-0406, and 10314-040. These items have only structural significance in that they transfer load, eliminate twist, maintain torsional rigidity, etc. Item 10314-040 is affixed to the bottom corners of a railway car to support the structure of the car. Furthermore, Item GM-0406 stabilizes the sides of a railway car in such a way that the car would collapse without it. As such, Items MP-035, GM-0406, 10314-040 form an essential part of the cars’ structure, which could not be maintained without them. Thus, they cannot be classified in heading 8302, HTSUS. This conclusion is consistent with prior CBP rulings. See, e.g., NY F88353, dated June 21, 2000 (a metal bracket that added torsional stiffness to the underbody of a motor vehicle was excluded from classification heading 8302, HTSUS, because it formed an essential part of the structure of the car); NY F81022, dated January 6, 2000 (excluding steel brackets used for holding boards to form a deck from heading 8302, HTSUS, because they “form[ed] an essential part of the structure of the deck and [were] not simply a fitting or mounting.”) As a result, we examine alternate headings.
Heading 8607, HTSUS, provides for “parts of railway or tramway locomotives or rolling stock.” The term “parts” in this heading does not apply to parts which are not suitable for use solely or principally with the articles of Chapter 86, HTSUS. See Note 3 to Section XVII, HTSUS; EN 86.07. This comports with the definition of “parts” found in case law and prior CBP rulings. See United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933) (requiring a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.”); United States v. Pompeo, 43 C.C.P.A. 9 (1955) (“an imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.”); Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (restating these two tests and stating that under either test, an imported item is not a part if it is “a separate and distinct commercial entity.”) See also HQ H225011, dated November 5, 2013; HQ H207578, dated May 13, 2013.
Furthermore, the parts of railway cars of heading 8607, HTSUS, include items such as parts of the frames and parts of the bodies of these cars. See EN 86.07. In addition, items that prior CBP rulings have classified in heading 8607, HTSUS, include a broad range of items that are identifiable for use with railway cars. This has included an operator’s cab and short hood of a railcar’s locomotive with no interior equipment, as well as a high voltage cabinet for locomotives that, as imported, was merely a housing cabinet for locomotive electrical equipment containing no provision for electrical equipment. See NY 800143, dated July 27, 1994; see also HQ 955417, dated February 23, 1994 (classifying unfinished railway frames in heading 8607, HTSUS).
In the present case, the subject merchandise is specifically designed for use with railcars. It forms an essential component of the structure of the railcars, and the cars could not function without them. As such, it meets the definition of “parts.” Furthermore, the subject merchandise comports with the exemplars of heading 8607, HTSUS, both the ones that are listed in EN 86.07 and those that have been classified in this heading by prior CBP rulings. As such, the subject merchandise is described by the terms of heading 8607, HTSUS, and will be classified there.
HOLDING:
By application of GRI 1, Item 10305-182 is classified in heading 8302, HTSUS. It is specifically provided for in subheading 8302.10.60, HTSUS, which provides for “Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof: Hinges, and parts thereof: Of iron or steel, of aluminum or of zinc: Other.” The column one, general rate of duty is 3.5% ad valorem.
By application of GRI 1, Items MP-035, GM-0406, and 10314-040 are classified in heading 8607, HTSUS. It is specifically provided for in subheading 8607.99.10, HTSUS, which provides for “Parts of railway or tramway locomotives or rolling stock: Other: Other: For vehicles of heading 8605 or 8606, except brake regulators.” The column one, general rate of duty is 2.8% ad valorem.
You are instructed to ALLOW the protest with respect to Items MP-035, GM-0406, and 10314-040 and DENY the protest with respect to Item 10305-182.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 International Trade, Regulations and Rulings, 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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division