HQ H257207
CLA-2 OT:RR:CTF:TCM H257207 TSM
Ms. Darlene Buro
Carmichael International Service
20 W Lincoln Ave., Suite 300
Valley Stream, NY 11580
RE: Reconsideration of NY N253173 and NY N253174; Classification of various chimney system parts from China.
Dear Ms. Buro:
This letter is in response to your request for reconsideration of New York Ruling Letters (NY) N253173, dated June 2, 2014, and N253174, dated May 22, 2014, issued to Shasta Vent Inc. (“Shasta”), concerning the tariff classification of various chimney system parts from China under the Harmonized Tariff Schedule of the United States (“HTSUS”).
In NY N253173, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise as follows: (1) the elbows were classified under subheading 7307.29.00, HTSUS, which provides for “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Other”; (2) the chimney pipe sections were classified under subheading 7306.40.10, HTSUS, which provides for “Other tubes, pipes and hollow profiles (for example, open seamed or welded, riveted or similarly closed), of iron or steel: Other, welded, of circular cross section, of stainless steel: Having a wall thickness of less than 1.65 mm”; and (3) the chimney caps, the storm collars and the flashings were classified under subheading 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other.” Shasta does not contest classification of the chimney pipe section under subheading 7306.40.10, HTSUS.
In NY N253174, CBP classified the subject merchandise as follows: (1) the adjustable wall brackets were classified under subheading 8302.41.60, 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: Other mountings, fittings and similar articles, and parts thereof: Suitable for buildings: Other: Of iron or steel, of aluminum or of zinc;” and (2) the tees and caps and the wall thimbles were classified under subheading 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other.”
We note that in your request for reconsideration, you also request a binding ruling on the tariff classification of numerous additional items. You may resubmit your request for a binding ruling along with detailed descriptions and product specifications to: Director, National Commodity Specialist Division / U.S. Customs and Border Protection / Attn: CIE/Ruling Request / One Penn Plaza, 10th Floor / New York, NY 10119.
We have reviewed NY N253173 and NY N253174 and found them to be correct. For the reasons set forth below we hereby affirm NY N253173 and NY N253174.
FACTS:
NY N253173, issued to Carmichael International Service on June 2, 2014, describes the subject merchandise as follows:
The elbow is comprised of an inner and outer pipe/tube both made of stainless steel with ceramic blanket insulation encased between the two pipes/tubes. The Shasta catalog states that the elbows are used as offsets in the chimney system to avoid structural members or other members and are available in two sizes: 15° and 30° angles. The chimney system can include up to four 30° elbows each capable of rotating 360°.
The chimney pipe section is a double walled pipe consisting of an inner and an outer pipe/tube that are made of Type 304 stainless steel with a nickel content of 8 percent. The inner and outer tubes are welded and measure .020 inch (.51 mm) in wall thickness. The pipe section is of a circular cross section and contains ceramic blanket insulation between the two pipes. It is designed to twist-lock together and uses a locking band to secure the connection. The pipe section is available in 6 inch and 8 inch diameters and 39 inch, 19 inch and 8 inch lengths.
The chimney cap is made of galvanized steel. The Shasta catalog indicates that the chimney cap tops off the chimney system, helps to retain sparks and embers and protects the chimney opening from moisture, debris and animals. It is available in two versions: the Economy Cap and the Deluxe Cap which features a removable spark arrestor screen.
The storm collar is made of galvanized steel and works in conjunction with the flashing to provide a weather proof seal where the chimney passes through the roof. It is installed directly above the flashing and must be sealed to the chimney with a high-temperature silicone sealant.
The flashing is made of galvanized steel. As per the Shasta catalog, the flashing provides a weather resistant means of sealing the chimney system where it passes through the roof. The flashing is either Ventilated or Non-Ventilated with a range of 0/12 to a 12/12 pitch.
NY N253174, issued to Carmichael International Service on May 22, 2014, describes the subject merchandise as follows:
The subject items are identified as an Adjustable Wall Bracket, a Tee and Cap, and a Wall Thimble. The Adjustable Wall Bracket and the Tee and Cap are made of stainless steel. The Wall Thimble is made of galvanized steel. The Shasta Catalog states that “The Adjustable Wall Bracket helps to secure the chimney in place when mounted to a structure or wall. Adjustable Wall Brackets are required at least every 10-feet, unless the chimney is otherwise held in place… The Adjustable Wall Bracket provides lateral stability, but does not support the weight of the chimney system. Adjustable Wall Brackets provide between 2” to 8” of adjustment between the chimney pipe and the wall.”
Regarding the Tee and Cap, the Shasta Catalog indicates that a Tee is used together with a Wall Thimble for a through-the-wall installation. The Tee provides access to clean the chimney and changes the direction from horizontal to vertical. The Tee Cap is provided with the Tee and twist-locks to the bottom of the Tee.
The Shasta Catalog indicates that the Wall Thimble is used for through-the-wall chimney installations. It protects the wall as the chimney passes safely through to the outside, and provides a finished look to the framed opening. The Wall Thimble can adjust to accommodate walls up to 10 inches deep. The wall thimble is used together with the Tee and Tee support.
ISSUE:
What is the proper classification of the merchandise under the HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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, 54 Fed. Reg. 35127-28 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
7307 Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel:
Other, of stainless steel:
7307.22 Threaded elbows, bends and sleeves:
7307.22.10 Sleeves (couplings)
7307.29.00 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:
Other:
7308.90.95 Other
7326 Other articles of iron or steel:
7326.90 Other:
Other:
Other:
7326.90.85 Other
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:
Other mountings, fittings and similar articles, and parts thereof:
8302.41 Suitable for buildings:
Other:
8302.41.60 Of iron or steel, of aluminum or of zinc
In NY N253173, stainless steel elbows (15, 30, 45 and 90 degrees) were classified in subheading 7307.29.00, HTSUS, which provides for “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Other.” You request that the elbows at issue be classified in subheading 7307.22.10, HTSUS, which provides for “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Threaded elbows, bends and sleeves: Sleeves (couplings).” The stainless steel elbows at issue are not threaded. Instead, you confirm that these elbow fittings have a twist lock closure which uses a band to secure the connection. Therefore, we find that the stainless steel elbows, as described, are classified in subheading 7307.29.00, HTSUS.
In NY N253174, stainless steel tees with caps were classified in subheading 7326.90.85, HTSUS, which provides for “Other items of iron or steel: Other: Other: Other: Other.” You request that the tees with caps at issue be classified in subheading 7307.22.10, HTSUS, which provides for “Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel: Other, of stainless steel: Threaded elbows, bends and sleeves: Sleeves (couplings).” Although you contend that these tees with caps have a twist lock closure which uses a band to secure the connection, they are not threaded and are not classified in subheading 7307.22.10, HTSUS.
Heading 7326, HTSUS, is a general basket provision covering other articles of iron or steel. EN 73.26 states:
This heading covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such as folding, assembling, welding, turning, milling or perforating other than articles included in the preceding headings of this Chapter or covered by Note 1 to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.
Because no other heading in the HTSUS more accurately describes the articles under consideration, we conclude that the stainless steel tees with caps are properly classified in the general basket provision of heading 7326, HTSUS, as “Other articles of iron or steel,” and specifically in subheading 7326.90.85, HTSUS.
In NY N253173 and NY N253174, articles designed to shed rain water onto the roof (economy chimney caps, deluxe chimney caps, storm collars and ventilated and non-ventilated roof flashings) and products described as decorative covers around the chimney pipe (finishing collars and wall thimbles), were classified in subheading 7326.90.85, HTSUS, which provides for “Other items of iron or steel: Other: Other: Other: Other.” You request that the above-referenced articles be classified in subheading 7308.90.95, HTSUS, which provides for “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: Other: Other: Other.”
Heading 7308, HTSUS, provides, in relevant part, for “Structures … of iron or steel.” The term "structures" is not defined in the HTSUS or the ENs. In cases where tariff terms are undefined, they are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’").
The web site www.Dictionary.com defines the word “structure” as:
Something made up of a number of parts that are held or put together in a particular way: hierarchical social structure. The way in which parts are arranged or put together to form a whole; makeup: triangular in structure. The interrelation or arrangement of parts in a complex entity: political structure; plot structure. Something constructed, such as a building.
The American Heritage® Dictionary of the English Language: Fourth Edition. 2000 gives the following definition of “structure”:
...Something made up of a number of parts that are held or put together in a particular way: hierarchical social structure. 2 The way in which parts are arranged or...
Merriam-Webster Online Thesaurus offers the additional descriptions of the term “structure”:
1 something built as a dwelling, shelter, or place for human activity the only structure on the island is an old Spanish fort--or what's left of 2 something put together by arranging or connecting an array of parts the Egyptian pyramids are among the most remarkable structures ever built the arrangement of parts that gives something its basic form the basic structure of all those tract houses is the same: basically, a box --
Based on these definitions, we conclude that in order to be considered a structure, an item must be a complex system consisting of a number of different parts or sections. In your request for reconsideration, you suggest that articles designed to shed rain water onto the roof (economy chimney caps, deluxe chimney caps, storm collars, and ventilated and non-ventilated roof flashings) and products described as decorative covers around the chimney pipe (finishing collars and wall thimbles) meet the terms of heading 7308, HTSUS, because they are utilized to become parts of an overall structure.
Heading 7308, HTSUS, is an eo nomine provision that provides for structures and parts of structures of iron or steel. Examples of structures and parts of structures included in the legal text to heading 7308, HTSUS, are 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.
Additionally, EN 73.08 states:
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. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc. Such structures sometimes incorporate products of other headings such as panels of woven wire, or expanded metal of heading 73.14. Parts of structures include clamps and other devices specially designed for assembling metal structural elements of round cross-section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing (emphasis added).
Chimney caps, roof flashings, storm collars, finishing collars and wall thimbles are not eo nomine provided for in heading 7308, HTSUS. As such, we must apply the canon of construction known as ejusdem generis. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157.
Upon review of the definitions, the legal text of heading 7308 and the EN 73.08, we conclude that the structures of heading 7308, HTSUS, are complex systems made up from a number of different parts or sections that are put together or connected, i.e., by riveting, bolting, welding, etc. Applying the principle of ejusdem generis, we find that the chimney caps, roof flashings and storm collars under consideration are not classifiable in heading 7308, HTSUS, because they are not similar to the named contents of that heading. Although these articles are used with structures, they are not themselves structural in design and are not a complex system consisting of a number of different parts or sections such as 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. Moreover, they are not made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so-called universal plates, hoop, strip, forgings or castings, by riveting, bolting, welding, etc.
Therefore, we conclude that the chimney caps, roof flashings, storm collars, finishing collars, and wall thimbles under consideration are not structures or parts of structures described in heading 7308, HTSUS. Thus, they are not classified in heading 7308, HTSUS, and subheading 7308.90.95, HTSUS. Because no other heading of the HTSUS more accurately describes the chimney caps, roof flashings, storm collars, finishing collars, and wall thimbles, they are classified in heading 7326, HTSUS, and subheading 7326.90.85, HTSUS.
In NY N253174, support related items for the chimney system (adjustable wall brackets), were originally classified in subheading 8302.41.60, 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: Other mountings, fittings and similar articles, and parts thereof: Suitable for buildings: Other: Of iron or steel, of aluminum or of zinc.” You request that the adjustable wall brackets be classified in subheading 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: Other: Other: Other: Other.”
Note 2 to Section XV (includes heading 8302, HTSUS) states, in relevant part: “Subject to the preceding paragraph and to note 1 to chapter 83, the articles of chapter 82 or 83 are excluded from chapters 72 to 76 and 78 to 81.” As such, we will first consider whether the adjustable wall brackets are classified in heading 8302, HTSUS. Heading 8302, HTSUS, provides, in relevant part, for “base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like.” The EN to heading 8302, HTSUS, also states, in pertinent part, that “This heading covers general purpose classes of base metal accessory fittings and mountings, such as are used largely on furniture, doors, windows, coachwork, etc.”
In HQ 996458, dated June 19, 2003, CBP defined the term “mounting” as “something serving as a backing, support, setting, etc.” The All-Fuel HT Chimney product catalog, provided to us with your request, describes the adjustable wall bracket as one that “helps to secure the chimney pipe in place when mounted to a structure or wall.” A question arises as to whether a mounting suitable for a wall is of the same class or kind of items as those listed in heading 8302, HTSUS. As such, we must apply the canon of construction known as ejusdem generis. See Supra. In HQ 967149, dated November 2, 2004, CBP stated, in pertinent part, the following: “Under the doctrine of ejusdem generis, we find that a wall … is of the same class or kind of items as those listed in the heading [8302], such as doors, staircases or windows. A wall is a specific part of a structure for which mountings, fittings and similar articles can be suitable.” In NY K82244, dated January 26, 2004, CBP found a wall to be ejusdem generis or of the same class or kind of goods as those enumerated in the text of heading 8302, HTSUS, and classified height adjustable safety support items intended to be mounted to a wall in heading 8302, HTSUS.
Accordingly, we find that the adjustable wall brackets are described as “base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like…” within the meaning of heading 8302, HTSUS. Based on the foregoing, we conclude that the adjustable wall brackets, as described, are classified in heading 8302, HTSUS, and subheading 8302.41.60, HTSUS. Because we have determined that the adjustable wall brackets are classified in heading 8302, HTSUS, they are excluded from heading 7326, HTSUS, pursuant to Note 2 to Section XV.
HOLDING:
By application of GRI 1 and 6, the merchandise at issue is classified as follows: (1) stainless steel elbows, as described above, are classified in subheading 7307.29.00, HTSUS; (2) stainless steel tees with caps, chimney caps (economy and deluxe), storm collars, finishing collars, ventilated and non-ventilated roof flashings, and wall thimbles, as described above, are classified in subheading 7326.90.85, HTSUS; and (3) the adjustable wall brackets, as described above, are classified in subheading 8302.41.60, HTSUS.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N253173, dated June 2, 2014, and N253174, dated May 22, 2014, are AFFIRMED.
Sincerely,
Joanne Roman Stump, Acting Director
Commercial and Trade Facilitation Division