OT:RR:CTF:CPMM H286551 RGR
Port Director
U.S. Customs and Border Protection
Service Port
1000 Second Ave, Suite 2100
Seattle, WA 98104
RE: Application for Further Review of Protest No. 3401-16-100046; Tariff classification of zont twist brackets
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3401-16-100046, timely filed on September 26, 2016, on behalf of Fab Form Industries Ltd. (“Protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of zont twist brackets.
FACTS:
The protested merchandise consists of zont twist brackets, which are used to reinforce insulated concrete forms (“ICF”) during construction. ICF is a system of formwork for reinforced concrete usually made with insulation that stays in place as a permanent interior and exterior substrate for walls, floors, and roofs. The components are interlocking units that are filled with concrete to form the walls.
While the ICF wall is being built and while concrete is being poured, the ICFs must be reinforced to prevent bowing of the surface of the wall. Zont twist brackets are used with zuckle wall aligners and wood beams to provide this reinforcement.
Zont twist brackets are used to lock horizontal 2"x4" lumber planks known as walers and vertical 2"x4" lumber beams known as strongbacks to the ICF wall. Each zont twist bracket consists of a ten (10) inch gauge steel piece with a saddle for the waler, and a plastic cam that is twisted counterclockwise to quickly lock the lumber pieces in place. The cam is designed so that any wall settlement will tighten the lumber against the wall.
Zont Twist Bracket
Zont and Zuckle Bracing System
The protested entries of zont twist brackets were entered between June 23, 2015, and May 5, 2016 at the Port of Pembina (“Port”) under subheading 7326.90.85, HTSUS, as “[o]ther articles of iron or steel: [o]ther: [o]ther: [o]ther: [o]ther. The entries were liquidated under subheading 7326.90.85, HTSUS (2015-2016), at a duty rate of 2.9% ad valorem. Protestant filed this Protest and AFR on September 26, 2016, asserting that the subject merchandise is properly classified under subheading 7308.40.00, HTSUS, as “[s]tructures (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: [e]quipment for scaffolding, shuttering, propping or pit-propping.”
ISSUE:
Whether zont twist brackets are classified under heading 7308, HTSUS, as “structures and parts of structures of iron or steel” or under heading 7326, HTSUS, as “other articles of iron or steel.”
LAW AND ANALYSIS:
The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3).
Further Review of Protest Number 3401-16-100046 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) on the grounds that the decision against which the protest was filed is alleged to be inconsistent with previous rulings issued by CBP with respect to substantially similar merchandise.
Classification under the 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 GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
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:
7308.40 Equipment for scaffolding, shuttering, propping or pit-propping
Other articles of iron or steel:
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) 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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to 73.26 states, in pertinent part, the following:
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.
Heading 7326, HTSUS, only covers articles that are not described by other headings such as heading 7308, HTSUS. Thus, if the merchandise is covered by heading 7308, HTSUS, it is classified therein, and is not classified in heading 7326, HTSUS.
Heading 7308, HTSUS, is divided into three parts: “[1] structures. . . [2] 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; [and] [3] plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel” (emphasis added). We note that the courts have stated that among the rules of punctuation for construing statutes, “[w]hen a modifier is set off from a series of antecedents by a comma, the modifier should be read to apply to each of those antecedents.” Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1336 (2008) (citing Kahn Lucas Lancaster v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir. 1999)). Applying this rule to the punctuation of heading 7308, HTSUS, the clause “iron or steel” modifies “structures,” “parts,” and “plates, rods, angles, shapes, sections, tubes and the like.” In the context of the subject zont twist brackets, which are parts of an ICF structure, this rule leads to the conclusion that the parts must be of iron or steel.
Furthermore, the language of the predecessor provision for heading 7308, HTSUS, in the Tariff Schedules of the United States (“TSUS”), clarifies the present provision.
Heading 652.90-652.98, TSUS, the predecessor provision to heading 7308, HTSUS, describes the following merchandise:
Hangars and other buildings, bridges, bridge sections, lock-gates, towers, lattice masts, roofs, roofing frameworks, door and window frames, shutters, balustrades, columns, pillars, and posts, and other structures and parts of structures, all the foregoing of base metal.
Of iron or steel:
While not identical, both provisions describe structures and parts of structures made of base metal, including iron or steel. However, the predecessor provision in the TSUS clearly states that all of the foregoing items named in the provision are of base metal. Moreover, the courts have interpreted the TSUS provision with respect to a shore frame scaffolding system similar to the instant merchandise and classified such merchandise in the TSUS predecessor to heading 7308, HTSUS. See S.G.B. Steel Scaffolding & Shoring Co., Inc. v. United States, 82 Cust. Ct. 197 (1979) (hereinafter, “S.G.B. Steel II”).
In S.G.B. Steel II, the court examined the meaning of the term “structure” for classification purposes under the TSUS, wherein it noted that tariff language is construed according to its common meaning. S.G.B. Steel, 82 Cust. Ct. at 211. The merchandise at issue in S.G.B. Steel II 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: “[s]upport formwork for concrete construction until the wet concrete hardens…” Id. at 203. In S.G.B. Steel Scaffolding & Shoring Co., Inc. v. United States, 70 Cust. Ct. 158, 160 (1973) (hereinafter, “S.G.B. Steel I”), the court described the formwork as follows: “The form systems [sic] which consists of beams and joist connectors, either wood or timber or steel, is set on that. The form face, either plywood or board, is put on top of that and the form is approximately set.” Not all of the parts of the support structure at issue in S.G.B. Steel I & II were of base metal. Nevertheless, the court found the shore frame systems to fit within the meaning of the term “structure” for purposes of item 652.98, TSUS, the predecessor provision to heading 7308, HTSUS. Like the shore frame system in S.G.B. Steel I & II, the ICF walls in the instant protest are similarly supported by wooden braces that are secured by the zont twist brackets, which are made of steel. Even though S.G.B. Steel I & II interpreted the predecessor provision to heading 7308, HTSUS, the court’s outcome in favor of classifying the shore frame systems in that provision, without regard to what the structure was made of, coupled with the rules of punctuation applied by the Court of Appeals for the Federal Circuit (“CAFC”) in Finisar Corp., supra, weigh in favor of our conclusion that the clause “iron or steel” in heading 7308, HTSUS, modifies “parts” without regard to what the ICF structure or supports are made of.
In sum, as the zont twist brackets are parts of iron or steel that make up a structure and are equipment for scaffolding or propping to reinforce the ICF walls during construction, they are properly classified in heading 7308, HTSUS, specifically under subheading 7308.40.00. HTSUS, as “[s]tructures (excluding prefabricated building of heading 9406) and parts of structure (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing framework, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns), or iron or steel, plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel: [e]quipment for scaffolding, shuttering, propping or propping.”
HOLDING:
By application of GRIs 1 and 6, the subject zont twist brackets are classified under heading 7308, HTSUS, specifically under subheading 7308.40.00, HTSUS, which provides for “[s]tructures (excluding prefabricated building of heading 9406) and parts of structure (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing framework, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns), or iron or steel, plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel: [e]quipment for scaffolding, shuttering, propping or propping.” The column one, general rate of duty at the time of entry was FREE.
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 at https://hts.usitc.gov/current.
You are instructed to GRANT the protest.
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 of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public online at http://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
Cc: Debra Robinson, Import Specialist
U.S. Customs and Border Protection
477 Michigan Avenue, Room 200
Detroit, MI 48226