OT:RR:CTF:CPMMA H331999 RRB
Center Director
Center of Excellence and Expertise-Base Metals
610 S Canal Street
Chicago, IL 60607
Attn: Abril A. Pineda, Supervisory Import Specialist
RE: Internal Advice Request; Classification of stainless steel and zinc panels
Dear Center Director:
This is in response to a request for Internal Advice ("IA") pursuant to 19 C.F.R 177.11, initiated on November 3, 2021, by Sandler Travis & Rosenberg, P.A., on behalf of their client, Overgaard Ltd. ("Overgaard"), and transmitted to our office on May 15, 2023, regarding the proper classification under the Harmonized Tariff Schedule of the United States ("HTSUS") of stainless steel and zinc panels used as building materials for Overgaard's School of Music ("SOM") project.
FACTS:
In its IA request, Overgaard identified two entries of stainless steel panels and four entries of zinc panels, which were deemed as misclassified in an audit of over 52 entries associated with the SOM project by U.S. Customs and Border Protection ("CBP") Trade Regulatory Audit ("TRA") (formerly Regulatory Audit and Agency Advisory Services ("RAAAS")) in its report, dated December 13, 2019 ("Audit Report").
Counsel for Overgaard describes the stainless steel panels at issue as bent stainless steel panels with small aluminum clips attached. The aluminum clips connect the panels together and are not themselves structural aluminum components. Some of the stainless steel panels include small aluminum supports. The stainless steel panels make up a portion of the final SOM project that is beneath the window curtain wall or above the curtain wall. According to counsel for Overgaard, the stainless steel panels are independent of the curtain wall and are not connected to it. Based on the commercial invoices, the stainless steel portion of the panels predominates over the aluminum portion by value and by weight.
The commercial invoices associated with the two stainless steel panel entries classified the merchandise in subheading 7610.90.0080, HTSUSA ("Annotated"), as "Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-section, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles tubes and the like, prepared for use in structures: Other: Other: Other." However, each component of the stainless steel panels was liquidated separately-the stainless steel components were liquidated in subheading 7308.90.9560, HTSUSA, and the aluminum components were liquidated separately in subheading 7610.90.0080, HTSUSA. The Audit Report states that these entries were misclassified, and that the proper classification is under subheading 7610.90.0080, HTSUSA, as "Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-section, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles tubes and the like, prepared for use in structures: Other: Other: Other."
Regarding the zinc panels at issue, counsel for Overgaard states that based on the commercial invoices, the zinc panels include "either aluminum panels (referred to as 'bent' aluminum [versus] extrusions) or aluminum or both. However, the extrusions are brackets attached to the back of the zinc panel." Based on the commercial invoices, the zinc component predominates by value and by weight. According to Overgaard's submission, the zinc panels are made from zinc sheets from Germany that are sent to China to be cut and bent. Extruded aluminum brackets/clips are then added to the back of the panels in China. The zinc panels include a zinc lip around some or all of the outer edges. These panels are rainscreen wall panels and are described as individual panels that connect to a solid concrete wall, and not to one another. The submitted documentation also indicates that the zinc panels are not windows, and do not connect to any windows. The panels serve as architectural decoration and also provide weather protection to prevent the concrete wall from deteriorating over time. The zinc panels are imported in their finished condition, in the size and shape required for installation with the extruded aluminum brackets attached to the back. The zinc portion of the zinc panels predominate by value and weight over the aluminum portion.
The commercial invoices associated with the four zinc panel entries classified the aluminum component of the merchandise in subheading 7610.90.0080, HTSUSA, as "Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-section, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles tubes and the like, prepared for use in structures: Other: Other: Other." The invoices separately classified the zinc component in subheading 7905.00.0000, HTSUSA, as "Zinc plates, sheets, strip and foil." Upon liquidation, the aluminum components of all of the zinc panel entries were classified separately in subheading 7610.90.0080, HTSUSA. The zinc components of one of the zinc panel entries were liquidated in subheading 7905.00.00, HTSUS, while the zinc components of the other three zinc panel entries were liquidated in subheading 7907.00.6000, HTSUSA, as "Other articles of zinc: Other." The Audit Report states that the zinc panel entries were misclassified, and that the proper classification is under subheading 7610.90.0080, HTSUSA.
While the six entries identified in this IA request have all been liquidated, we have confirmed with the Base Metals Center of Excellence and Expertise ("Base Metals Center") via commercial invoices, entry summaries and other entry documents that Overgaard entered various unliquidated entries of the same stainless steel and zinc panels.
Counsel for Overgaard argues that the stainless steel panels described in its IA submission are properly classified via GRI 3(b) in subheading 7308.90.9560, HTSUSA. Overgaard also asserts that the zinc panels are properly classified via GRI 3(b) in subheading 7907.00.6000, HTSUSA.
ISSUES:
1) Whether the subject stainless steel panels are classified in subheading
7308.90.9560, HTSUSA, as "Structures (excluding prefabricated building of heading 9406) and parts of structures ... 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: Other: Architectural and ornamental work"; in subheading 7308.90.9590, HTSUSA, as "Structures (excluding prefabricated building of heading 9406) and parts of structures ... 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: Other: Other"; or in subheading 7610.90.0080, HTSUSA, as "Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-section, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles tubes and the like, prepared for use in structures: Other: Other: Other."
2) Whether the subject zinc panels are classified in subheading 7610.90.0080,
HTSUSA, as "Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-section, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles tubes and the like, prepared for use in structures: Other: Other: Other"; in subheading 7905.00.0000, HTSUSA, as "Zinc plates, sheets, strip and foil"; or in subheading 7907.00.6000, HTSUSA, as "Other articles of zinc: Other."
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation ("GRI"). GRI 1 provides that classification 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. GRI 6 states that:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
GRI 3(b) states, in pertinent part:
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The HTSUSA provisions under consideration are as follows:
7308 Structures (excluding prefabricated building of heading 9406) and parts of structures (for example, bridges and bridge section, 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...
Other:
7308.90.9560 Architectural and ornamental work...
7308.90.9590 Other...
7610 Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-section, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminum plates, rods, profiles tubes and the like, prepared for use in structures:
7610.90.00 Other...
Other:
7610.90.0080 Other...
7905.00.0000 Zinc plates, sheets, strip and foil...
7907 Other articles of zinc:
7907.00.6000 Other...
* * * *
Note 7 (Classification of composite articles) to section XV, HTSUS, provides, in pertinent part that "[e]xcept where the headings otherwise require, articles of base metal ... containing two or more base metals are to be treated as articles of the base metal predominating by weight over each of the other metals."
Stainless Steel Panels
The subject steel panel articles are comprised of bent stainless steel panels with small aluminum clips or small aluminum supports attached. Counsel for Overgaard asserts that the stainless steel panels should be classified in their condition as imported in subheading 7308.90.9560, HTSUSA. Because the stainless steel panels make up a portion of the final SOM project that is beneath the window curtain wall or above the window curtain wall, and the panels are independent of the curtain wall, the stainless steel panels are not classifiable as curtain walls per GRI 1. Furthermore, we find that because the aluminum clips or supports are attached to the stainless steel component, the stainless steel panels are a composite good.
Because the stainless steel panels are composite goods, they are classified under GRI 3(b), as if they consisted of the material or component which gives them their essential character. Additionally, note 7 to section XV, HTSUS, provides that composite articles of base metal containing two or more base metals are to be treated as articles of the base metal predominating by weight over each of the other materials. Here, the stainless steel component of the stainless steel panels predominates by weight and value over the aluminum component. According to the submitted documentation, the stainless steel is the facing material, and the aluminum components serve only supporting roles in attaching the stainless steel panel to the concrete wall behind it. Thus, the stainless steel component imparts the essential character of the subject stainless steel panel. Moreover, the aluminum clip components are not themselves structural aluminum components of heading 7610, HTSUS, but are designed for assembling the stainless steel structural elements.
In sum, pursuant to GRI 3(b) and note 7 to section XV, HTSUS, we agree with counsel for Overgaard's assertion that the subject stainless steel panels are classified based on the stainless steel component of the merchandise in subheading 7308.90.95, HTSUS, as structures or parts of structures of iron or steel. However, we disagree that the stainless steel panels are classified in the statistical breakout for "architectural and ornamental works." We find that the stainless steel panels are not of an ornamental nature and are properly classified in subheading 7308.90.9590, HTSUSA, as "Structures (excluding prefabricated building of heading 9406) and parts of structures ... 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: Other: Other."
Zinc panels
The subject zinc panel articles are comprised of zinc panels with extruded aluminum clips or brackets attached to the back of the zinc panels. Overgaard asserts that the zinc panels should be classified in their condition as imported in subheading 7907.00.6000, HTSUSA. The zinc panels are imported in their finished condition, in the size and shape required for installation with the extruded aluminum bracket components attached to the back. Like the stainless steel panels, the zinc panels are independent of the curtain wall and are not classifiable as curtain walls per GRI 1. Furthermore, we find that because the extruded aluminum clips or brackets are attached to the zinc component, the zinc panels are a composite good.
Because the zinc panels are composite goods, they are classified under GRI 3(b), as if they consisted of the material or component which gives them their essential character. Additionally, note 7 to section XV, HTSUS, provides that composite articles of base metal containing two or more base metals are to be treated as articles of the base metal predominating by weight over each of the other materials. Here, the zinc component of the zinc panels predominates by weight and value over the aluminum component. Thus, under note 7 to section XV, HTSUS, the panels containing zinc and aluminum components are to be treated as articles of zinc. According to the submitted documentation, the zinc is the facing material, and the aluminum components serve only supporting roles in attaching the zinc panel to the concrete wall behind it. Therefore, the zinc component imparts the essential character of the subject zinc panels. Moreover, the aluminum clip components are not themselves structural aluminum components of heading 7610, HTSUS, but are designed for assembling the zinc structural elements.
Next, we must determine the correct classification of the zinc component for purposes of classifying the zinc panels under GRI 3(b). Although the zinc components of one of the four identified zinc panel entries was entered and liquidated in subheading 7905.00.00, HTSUS, as zinc sheets, we agree with Overgaard that the zinc panels are not classifiable as zinc sheets. The zinc panels are imported in a finished condition, bent and cut, with a zinc lip, and complete with aluminum brackets attached at the back; as such, the zinc panels exceed the scope of heading 7905, HTSUS, for zinc sheets. Thus, the zinc component of the zinc panels, are classified in subheading 7907.00.6000, HTSUSA, as other articles of zinc. Because the zinc component imparts the essential character of the zinc panels, and predominates by weight under note 7 to section XV, HTSUS, we find that the subject zinc panels are classified in subheading 7907.00.6000, HTSUSA.
HOLDING:
By application of GRIs 3(b) and 6, the stainless steel panels are classified in heading 7308, HTSUS, and specifically in subheading 7308.90.9590, HTSUSA, which provides for "Structures (excluding prefabricated building of heading 9406) and parts of structures ... 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: Other: Other." The 2023 column one, general rate of duty is free.
By application of GRIs 3(b) and 6, the zinc panels are classified in heading 7907, HTSUS, and specifically in subheading 7907.00.6000, HTSUSA, which provides for "Other articles of zinc: Other." The 2023 column one, general rate of duty is 3% ad valorem.
Pursuant to US. note 20 to subchapter III, chapter 99, HTSUS, products of China classified under subheading 7308.90.95, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the chapter 99 subheading, i.e., 9903.88.02, in addition to subheading 7308.90.95, HTSUS, listed above.
Pursuant to US. note 20 to subchapter III, chapter 99, HTSUS, products of China classified under subheading 7907.00.60, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 7907.00.60, HTSUS, listed above.
Duty rates are provided for the requestor's convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at https://hts.usitc.gov/.
You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System ("CROSS"), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division