CLA-2: OT:RR:CTF:TCM H251037 DSR
Port Director
Port of Philadelphia
U.S. Customs and Border Protection
2nd & Chestnut Streets
Room 102
Philadelphia, PA 19106
Re: Application for Further Review of Protest No. 1101-13-100288; classification of Phillips/slotted pan head shoulder fastener made of nickel-plated steel
Dear Port Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 1101-13-100288, timely filed by Threaded Screw Products Company, Inc. (“Protestant”). The protest concerns the classification of a fastener under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The fastener under consideration is identified as Part #1044 and is a Phillips/slotted pan head shoulder fastener made of nickel-plated steel. It is used with a hew nylon insert lock nut in the manufacture of an industrial staple gun. The shoulder section of the fastener is approximately .8” long and .187” in diameter. The threaded portion of the fastener’s shank is approximately .141” long and #6-32 UNC. Protestant has provided a sample of the fastener.
Protestant asserts that the fastener is classified in subheading 7518.15.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Bolts and bolts and their nuts or washers entered or exported in the same shipment.” Alternatively, Protestant asserts that the article is classified under subheading 7318.15.40, HTSUS, which provides for “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Machine screws 9.5 mm or more in length and 3.2 mm or more in diameter (not including cap screws).” The fastener was liquidated under subheading 7518.15.60, HTSUS, which provides for “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Other: Having shanks or threads with a diameter of less than 6 mm.”
ISSUE:
Is the fastener classified under (1) subheading 7318.15.20, HTSUS, which covers bolts and bolts and their nuts or washers entered or exported in the same shipment; (2) subheading 7318.15.40, HTSUS, which covers threaded machine screws 9.5 mm or more in length and 3.2 mm or more in diameter (not including cap screws); or (3) subheading 7318.15.60. HTSUS, which covers other threaded screws and bolts of iron or steel having shanks or threads with a diameter of less than 6 mm?
LAW AND ANALYSIS:
Initially, we note that the subject matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on November 14, 2013, which was within 180 days of the May 17, 2013, liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further review is properly accorded to the protest pursuant to 19 C.F.R. 174.24(b), because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of CBP or his designee, or by the customs courts. Specifically, the question of the classification of the merchandise was an issue of first impression at the time the protest was filed.
Classification under the HTSUS is determined 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 based on 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. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System 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 at the international level. See T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration in this case are as follows:
7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel:
Threaded articles:
* * *
7318.15 Other screws and bolts, whether or not with their nuts or washers:
7318.15.20 Bolts and bolts and their nuts or washers entered or exported in
the same shipment
* * *
7318.15.40 Machine screws 9.5 mm or more in length and 3.2 mm or more in diameter (not including cap screws).
* * *
Other:
* * *
7318.15.60 Having shanks or threads with a diameter of less than 6 mm.
* * *
* * * *
The terms “screw” and “bolt” are not defined in either the HTSUS or its legislative history. The meaning of a tariff term, a matter of statutory construction, presents a question of law. Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir. 1998). When, as in this case, a tariff term is not defined in either the HTSUS or its legislative history, "the term's correct meaning is its common meaning." Mita Copystar America v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod America Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod at 1576. We also note the following:
In conformance with the general organization of the tariff schedule, heading 7318 encompasses a number of like items. And like all tariff headings, heading 7318 is broken out into six and eight digit subheadings for classification of articles thereunder. In particular, six-digit subheading 7318.15 applies to both "other screws" and "bolts." The first eight-digit provision under that subheading, 7318.15.20, applies only to bolts. For purposes of classification under 7318.15, then, Congress clearly considered bolts and screws to be different articles, and intended Customs to classify them under separate provisions. As a corollary to this, a fastener cannot be both a bolt and a screw, but must be one or the other.
Rocknel Fasteners v. United States, 24 C.I.T. 900, 903, 118 F. Supp. 2d 1238, 1241 (2000). Furthermore, subheading 7318.15, HTSUS, is neither an actual use nor a principal use provision and generally, use is not considered unless use is part of the definition of the classification or use is otherwise suggested. See North American Processing Co. v. United States, 23 C.I.T. 385, 56 F. Supp. 2d 1174, 1180 (1999) (citing Ruth Sturm, Customs Law & Administration § 53.2, 11-12 (Supp. 1995)). Thus, how Protestant uses the subject fasteners (assembled with nuts) has no bearing on the common and commercial meaning of bolt and screws. See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (C.A.F.C. 1999) (refusing to narrow a provision for microscopes to only those used in research and industry because "a use limitation should not be read into an eo nomine provision unless the name itself inherently suggests a type of use").
With regard to the definition of “bolt,” CBP’s Informed Compliance Publication Distinguishing Bolts from Screws (July 2012) explains that CBP uses the Specification for Identification of Bolts and Screws, American National Standards Institute/American Society of Mechanical Engineers B18.2.1 1981 (“ANSI B18.2.1”) to distinguish bolts from screws. ANSI B18.2.1 has been sanctioned by the Court of International Trade as “provid[ing] a well-recognized, comprehensive basis for the common and commercial meaning of bolt and screw as understood by the fastener industry in the United States.” Rocknel at 906, 118 F.Supp. 2d at 1243 (2000). The court in Rocknel also implicitly rejected the claim that an international standard should be applied.
ANSI B18.2.1 begins with two general definitions:
Bolt: A bolt is an externally threaded fastener designed for insertion through holes in assembled parts, and is normally intended to be tightened or released by torquing a nut
Screw: A screw is an externally threaded fastener capable of being inserted into holes in assembled parts, of mating with a preformed internal thread or forming its own thread, and of being tightened or released by torquing the head.
See ANSI/ASME B18.2.1, §§ 2.1, 2.2. “Because of basic design, it is possible to use certain types of screws in combination with a nut. Any externally threaded fastener which has a majority of the design characteristics which assist its proper use in a tapped or other preformed hole is a screw, regardless of how it is used in its service application.” Distinguishing Bolts from Screws, §II(3). What often causes confusion when determining whether a fastener is a screw or a bolt is that some screws may be used with nuts but, if they are threaded sufficiently, do not require nuts in order to fulfill their intended purposes.
The standards contained in ANSI/ASME B18.2.1 are consolidated into two types of criteria (Primary and Supplementary) in Distinguishing Bolts from Screws, §II(4), and their application is described as follows:
“The Primary Criteria (5.1 thru 5.4) shall be applied first. Any fastener which satisfies one of the Primary Criteria shall be identified accordingly, and no further examination need be made. The Supplementary Criteria (6.1 through 6.9, and not listed in order of importance or priority of application) shall be applied to a fastener which does not satisfy completely any one of the Primary Criteria. The Supplementary Criteria detail the principal features in the design of an externally threaded fastener which contribute to its proper use as a screw. A fastener having a majority of these characteristics shall be identified as a screw.”
(Emphasis added).
Primary Criteria 5.1 states that an externally threaded fastener which because of head design or other feature, is prevented from being turned during assembly, but which can be tightened or released only by torquing a nut, is a bolt. The fastener in question does not meet those requirements because, although it can be tightened or released by torquing a nut, dependent upon how its users intend to use it, that method is not the only way to do so. It can also be tightened or released by torquing the head. Additionally, the criterion clearly requires that a fastener be incapable of being turned during assembly, and the article in question can be turned due to the characteristics of the head. Because of the above, the fastener does not meet Primary Criteria 5.1 and cannot be identified as a bolt on that basis.
Primary Criteria 5.2 states that an externally threaded fastener which has a thread form which prohibits assembly with a nut, having a straight thread of multiple pitch length, is a screw. The examples given by Primary Criteria 5.2 include wood screws and tapping screws. Here, the subject fastener can be assembled with a nut and, thus, we conclude that Primary Criteria 5.2 is also not met.
Primary Criteria 5.3 states that a fastener that must be assembled with a nut to perform its intended service is a bolt. The example given is that of a heavy hex structural bolt, which is used in structural bolting applications requiring the use of a structural nut to complete the connection. Here, the subject fastener is partially threaded and is capable of being tightened in position without a nut. Without additional evidence that clearly shows that the fastener must be assembled with a nut, we are unable to conclude that Primary Criteria 5.3 has been met.
Primary Criteria 5.4 states that an externally threaded fastener that must be torqued by its head into a tapped or other preformed hole to perform its intended service is a screw. The example given is that of a square head set screw. Here, the subject fastener is capable of being torqued by the head but can also be torqued by a nut (when a nut is turned onto the shank). Therefore, it cannot be said that the fastener must be torqued by the head in order to perform its intended service, and Primary Criteria 5.4 is not met. Because none of the Primary Criteria have been met, we must resort to the Supplementary Criteria to classify the subject fastener.
Supplementary Criteria 6.1 states that a screw should have a controlled fillet at the junction of the head with the body. A controlled fillet assures solid seating of the head. Technical drawings normally verify a controlled fillet (the concave junction of the head and shank) radius on a screw by verifying maximum and minimum limits. The submitted technical drawing for the fastener does not specify either maximum or minimum limits for fillet radius. We are unable to otherwise verify if the subject fastener possesses a controlled fillet.
With regard to Supplementary Criteria 6.2, which addresses the bearing surfaces of fasteners, the bearing surface of the subject fastener is smooth and flat, meeting the Criteria.
Supplementary Criteria 6.3 states that the angularity (squareness) of the under head bearing surface with the shank of a screw should be controlled to minimize eccentric loading in the screw or assembled parts and to assure complete seating and uniform under head bearing pressure. The fastener appears to possess a closely controlled head angularity. That is, the angle created at the junction of the under head bearing surface and the shank appears to be square or nearly square. The fastener therefore meets the Criteria.
Supplementary Criteria 6.4 states that the body of a screw should be closely controlled in accuracy of size and roundness and, to fit effectively through a minimum clearance hole, the body diameter must have close tolerances, preferably unilateral on the minus side. The subject fastener’s body appears to possess a closely controlled body diameter and meets the Criteria.
Supplementary Criteria 6.5 states that the shank of a screw should be particularly straight to permit ready engagement with an internal thread, to prevent eccentric loading in the fastener or in the assembled parts, and to minimize interference with the walls of a minimum clearance hole. The subject fastener appears to possess a straight shank and meets the Criteria.
Supplementary Criteria 6.6 states that the threads of a screw should be concentric with the body axis. The subject fastener appears to possess such concentric threads and meets the Criteria.
Supplementary Criteria 6.7 states that the length of thread on a screw must be sufficient to develop the full strength of the fastener in tapped holes in various materials. The subject fastener possesses a very short length of thread relative to its overall body length. We are unable to determine if that length of thread is sufficient to develop the full strength of the fastener in tapped holes in various materials. It, therefore, does not meet the Criteria.
Supplementary Criteria 6.8 states that the fastener should have a chamfered, or other specially prepared point at its end, to facilitate entry into the hole and easy start with the internal thread. The subject fastener does not possess a chamfered head or other specially prepared point at its end. It, therefore, does not meet the Criteria.
Supplementary Criteria 6.9 states that the length of a screw should be closely toleranced with variance preferably unilateral on the minus side to prevent bottoming of the fastener in a tapped hole. We are unable to determine if the subject fastener possesses lengths of close tolerance and meets Criteria 6.9.
In conclusion, the fastener meets five of the nine Supplementary Criteria that can be identified. Based upon the above, we conclude that the fastener is identifiable as a screw, and not a bolt. The question remains as to what type of screw. Protestant alternatively asserts that the fastener is classifiable as a machine screw under subheading 7318.15.40, HTSUS, as opposed to “other screws …” under subheading 7318.15.60, HTSUS.
As an eo nomine provision, the term “machine screw” in subheading 7318.15.40, HTSUS, covers all forms of the described merchandise and is not circumscribed by any limiting language. “It is well established that an eo nomine provision includes all forms of the named article unless Congress indicates to the contrary.” See National Advanced Systems v. United States, 26 F. 3d 1107, 1111 (Fed. Cir. 1994). However, the term “machine screw” is neither defined in the tariff nor in its legislative history. The only guidance in the tariff for classification of an article as a machine screw is contained in subheading 7318.15.40, HTSUS, which covers “Machine screws 9.5 mm or more in length and 3.2 mm or more in diameter (not including cap screws).” When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel at 1356. "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.' " Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)).
The American Heritage College Dictionary (4th Ed. 2002) defines the term “machine screw” as a “screw with a thread along the entire length of the shaft.” The Complete Illustrated Guide to Everything Sold in Hardware Stores (1998) describes a machine screw as being “threaded along its entire length, it has a flat tip, a round or flat head, and is designed primarily to be screwed into pre-threaded holes in metal, though of course it works with nuts too …”
Inch standards for machine screws are provided for in Slotted and Recessed Head Machine Screws, ANSI/ASME B18.6.3 (2003). ANSI/ASME B18.6.3 allows that machine screws possess full threads running the length of their shanks, whereas this fastener possesses a .8” shoulder. Furthermore, ANSI/ASME B18.6.3, §§ 1.2.5, which specifically addresses pan head machine screws, states that the slotted pan head of a machine screw shall possess a flat top surface rounded into cylindrical sides and a flat bearing surface. The bearing surface of the subject fastener is located beneath the shoulder and not directly below the slotted pan head. The fastener therefore does not possess the design characteristics a machine screw and is not classified as such in subheading 7813.15.40, HTSUS. Accordingly, the instant screw must be classified under subheading 7813.15.60, HTSUS, because it does not fall under the two superior provisions discussed in the foregoing. See also HQ H100095 (August 22, 2011).
HOLDING:
You are instructed to DENY the protest. By application of GRIs 1 and 6, the fastener is classifiable under subheading 7318.15.60, HTSUS (2013), which provides “Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel: Threaded articles: Other screws and bolts, whether or not with their nuts or washers: Other: Having shanks or threads with a diameter of less than 6 mm.” The column one, general rate of duty is 6.2% ad valorem.
Note that the subject goods were imported in 2013, and are therefore not subject to Presidential proclamations 9704 and 9705 (March 18, 2018), which imposed additional tariffs and quotas on a number of steel and aluminum mill products imported from China, including articles of subheading 7318.15.60, HTSUS.
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 website 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