Internal Advice #14/008; Classification of aluminum alloy components of a deck railing systemAttn Dennis Sondergaard, Import Specialist

September 28, 2017 HQ H253901 CLA-2 OT:RR:CTF:CPM HQ H253901 MAB CATEGORY: Classification Tariff No.: 7610.90.00, 7616.99.50 Port Director U.S. Customs and Border Protection 1000 2nd Avenue (Suite 2100) Seattle, WA 98104-3629 RE: Internal Advice #14/008; Classification of aluminum alloy components of a deck railing system Attn: Dennis Sondergaard, Import Specialist Dear Port Director: The following is in response to your transmittal dated August 16, 2013, requesting Internal Advice in accordance with 19 CFR 177.11(b)(4), concerning the proper classification of various types of aluminum alloy components of a deck railing system under the Harmonized Tariff Schedule of the United States (“HTSUS”) initiated by letter dated May 1, 2013, by counsel on behalf of its client, Regal Ideas, Inc. (“Regal”). This decision takes into consideration the samples that Regal submitted to our office in December 2014. We have also considered arguments presented by counsel, on behalf of its client, in a meeting with my staff on August 10, 2017, and a supplemental submission submitted on August 30, 2017. FACTS: The subject merchandise, entered in 2012 and 2013, consists of an assortment of aluminum alloy components that are imported from China and used in the assembly of a deck railing system. The four types of components at issue consist of posts, top and bottom railings, pickets and decorative post caps and base covers. All of the components are produced via an extrusion process, drilled, bent or notched, cut to length and powder coated (i.e., further worked). With the exception of the decorative post caps and base covers, the components have a uniform cross-section but do not have a uniform wall thickness. Regal explains that the non-uniform wall thickness is intentional to meet the building codes. The specific articles in the entries at issue are as follows: Posts: hollow straight square posts in 36” and 42” lengths and either 21/4” square or 4” square width with welded rail brackets; the welded rail brackets are positioned on the posts in configurations that allow for the rails to connect to the post at a 90 degree angle for a corner post, on only one side for an end post, on two sides for a line post, or for use with a separately sold angle bracket for a stair post; smaller width posts feature an attached 4” base plate and the larger width posts feature an attached 6” base plate; the base plates contain tapped screw holes for fastening to a deck or other flooring; the posts are coated white, black, textured black, taupe, yard bronze or titanium slate and packaged in single units with a removable post cap snapped into place. Fastener packages and universal brackets are sold separately. Top and Bottom Railings: hollow top and bottom rails, packaged together, in six, eight, ten and twelve foot lengths, and coated white, black, textured black, taupe, yard bronze or titanium slate; the top and bottom rails are shaped differently, but both are shaped to fit into the welded brackets on the posts. The installation guide instructs the installer to insert the rails into the brackets on the posts, plumb and fasten posts to deck, drill holes to align the bracket and rail, and insert and fasten the rail to the post with color matching screws that are sold separately. Regal ideas, http://regalideas.com/step-two-install-top-and-bottom-rails/ (last visited Sept. 14, 2017). Picket Packages: hollow straight pickets of 36” or 42” in length and either ¾ inch or 19/16 inches width; coated white, black, textured black, taupe, yard bronze or titanium slate; they are seamless and notched to fit inside the top and bottom railings; the ¾ inch pickets are packaged in 14, 19 or 24 quantities with enough four inch spacers to match the six, eight, ten or twelve foot long rails. The wide pickets come in quantities of six along with 14 spacers to cover three feet of rail. The installation instructions for the pickets state “Important to note that pickets are grooved on two sides of each end of the picket. The pickets lock the top and bottom rails together. This eliminates the need of a bottom rail support and no need for screws in the pickets.” Regal ideas, http://regalideas.com/step-three-install-pickets-or-glass/ (last visited Sept. 14, 2017) Decorative Post Caps and Base Covers: decorative post caps that are not hollow or of uniform cross section; coated in white, black, textured black, taupe, yard bronze or titanium slate and shaped as a ball, a pyramid or a tower, that snap on to replace the original cap sold in place on the posts; base plate covers wrap around post bases to hide fasteners; both items come in white, black, textured black, taupe, yard bronze or titanium slate. In their imported condition, the assorted components for Regal’s deck railing system are packaged as noted above, in groupings for the top and bottom rails, or the correct number of pickets and spacers, or individually for the posts, decorative post caps and base covers. Each package is labeled by part number. Regal imports the instant merchandise packaged for retail sale. Retailers place the merchandise in retail displays that are grouped by category (e.g., top and bottom railings packaged together, picket packages with spacers, posts, etc.). At retail, the customers can select the components needed to build their railing for either commercial or residential decks. ISSUE: Whether the imported merchandise is classified as “Aluminum bars, rods and profiles” in heading 7604, HTSUS, or as “Aluminum tubes and pipes” in heading 7608, HTSUS, or as “Aluminum structures . . . and parts of structures . . .; aluminum plates, rods, profiles, tubes and the like, prepared for use in structures” in heading 7610, HTSUS, or as “Other articles of aluminum” in heading 7616, HTSUS. LAW & ANALYSIS: 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 order. The HTSUS headings under consideration are as follows: 7604 Aluminum bars, rods and profiles: * * * * * 7608 Aluminum tubes and pipes: * * * * * 7610 Aluminum structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge-sections, 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: * * * * * 7616 Other articles of aluminum: * * * * * Legal Note 1 to Chapter 76, HTSUS, provides the following, in pertinent part: In this Chapter the following expressions have the meanings hereby assigned to them: (b) Profiles Rolled, extruded, drawn, forged or formed products, coiled or not, of a uniform cross section along their whole length, which do not conform to any of the definitions of bars, rods, wire, plates, sheets, strip, foil, tubes or pipes. The expression also covers cast or sintered products, of the same forms, which have been subsequently worked after production (otherwise than by simple trimming or descaling), provided that they have not thereby assumed the character of articles or products of other headings. (e) Tubes and pipes Hollow products, coiled or not, which have a uniform cross section with only one enclosed void along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons, and which have a uniform wall thickness. Products with a rectangular (including square), equilateral triangular or regular convex polygonal cross section, which may have corners rounded along their whole length, are also to be considered as tubes and pipes provided the inner and outer cross sections are concentric and have the same form and orientation. Tubes and pipes of the foregoing cross sections may be polished, coated, bent, threaded, drilled, waisted, expanded, cone-shaped or fitted with flanges, collars or rings. 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 for heading 7604, HTSUS, provides the following, in pertinent part: These products, which are defined in Notes 1 (a) and 1 (b) to the Chapter, correspond to similar goods made of copper. The provisions of the Explanatory Note to heading 74.07 apply therefore, mutatis mutandis, to this heading. The heading does not cover: (a) Rods and profiles, prepared for use in structures (heading 76.10). (emphasis in original) The EN for heading 7407, provides the following, in pertinent part: The products of this heading are usually obtained by rolling, extrusion or drawing, but may also be obtained by forging (whether with the press or hammer). They may subsequently be coldfinished (if necessary after annealing) by colddrawing, straightening, or other processes which give the products a finish of higher precision. They may also be worked (e.g., drilled, punched, twisted or crimped), provided that they do not thereby assume the character of articles or of products of other headings. The heading also covers hollow profiles including finned or gilled tubes and pipes obtained by extrusion. However, tubes and pipes to which fins or gills have been attached, e.g., by welding, are excluded  generally heading 74.19. (emphasis in original) The EN for heading 7608, HTSUS, provides the following, in pertinent part: The heading does not cover: (d)   Tubes and pipes made up into specific identifiable articles, such as those prepared for use in structures (heading 76.10), machinery or vehicle parts (Sections XVI and XVII), etc. (emphasis in original) The EN for heading 7610, HTSUS, provides the following, in pertinent part: The provisions of the Explanatory Note to heading 73.08 apply, mutatis mutandis, to this heading. In view of their lightness, aluminum and its alloys are sometimes used instead of iron or steel in the manufacture of structural frameworks, ships’ superstructures, bridges, sliding doors, electric grid or radio pylons, telescopic pit props, door or window frames, railings, etc. The EN for heading 7308, HTSUS, provides the following, in pertinent part: 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 socalled 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 crosssection (tubular or other). These devices usually have protuberances with the tubing. Apart from the structures and parts of structures mentioned in the heading, the heading also includes products such as: Pit head frames and superstructures; adjustable or telescopic props, tubular props, extensible coffering beams, tubular scaffolding and similar equipment; sluice-gates, piers, jetties and marine moles; lighthouse superstructures; masts, gangways, rails, bulkheads, etc., for ships; balconies and verandahs; shutters, gates, sliding doors; assembled railings and fencing; level-crossing gates and similar barriers; frameworks for greenhouses and forcing frames; large-scale shelving for assembly and permanent installation in shops, workshops, storehouses, etc.; stalls and racks; certain protective barriers for motorways, made from sheet metal or from angles, shapes or sections. The heading also covers parts such as flat-rolled products, “wide flats” including so-called universal plates, strip, rods, angles, shapes, sections and tubes, which have been prepared (e.g., drilled, bent or notched) for use in structures. The EN for heading 7616, HTSUS, states, in pertinent part, the following: This heading covers all articles of aluminum other than those covered by the preceding headings of this Chapter, or by Note 1 to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature. (emphasis in original) Since all of the items of merchandise at issue (railings, pickets, posts and post caps/bases) are made of aluminum alloy, they are classified in Chapter 76 of the HTSUS, which covers “Aluminum and Articles Thereof.” See also Subheading Note 1(b) to Chapter 76, HTSUS. Furthermore, we agree that if the rails, pickets and posts do not have a uniform wall thickness, as Regal claims, they meet the definition of “profiles” in Note 1(b) to Chapter 76, and no other pertinent definition in the note. Lastly, we agree with Regal that since the decorative post caps and base plate covers do not have a uniform cross section along their whole length, they are not described by the term “profile” or any of the other terms in Note 1 to Chapter 76. Hence, as the rails, posts and pickets are the profile shapes used to assemble a deck railing, we will consider them separately from the decorative post caps and base plate covers. Heading 7610, HTSUS, provides for "Structures … and parts of structures … of aluminum." The term “structure” is not defined in the tariff. The Court examined the meaning of the term "structure" in S.G.B. Steel Scaffolding & Shoring Co., Inc. v. United States, 82 Cust. Ct. 197, 211 (Cust. Ct. 1979) and determined that "there is no precise definition of the term ‘structure.’” It noted that the common meaning of tariff descriptions has frequently been applied by the courts in such instances. “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.’” Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001) (quoting C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982)). In addition, the Explanatory Notes of the Harmonized Commodity Description and Coding System (“ENs”) while not binding law, offer guidance as to how tariff terms are to be interpreted. Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that ENs are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation" (citing Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994)). In Headquarters Ruling Letter (“HQ”) (August 1, 2005), CBP drew from the following three dictionary sources to define the term “structure”: 1) Dictionary.com, http://www.dictionary.com: “Something made up of a number of parts that are held or put together in a particular way: … The way in which parts are arranged or put together to form a whole; … The interrelation or arrangement of parts in a complex entity: … Something constructed, such as a building;” 2) The American Heritage Dictionary of the English Language, (4th Ed. 2000): “1. Something made up of a number of parts that are held or put together in a particular way: … 2. The way in which parts are arranged;” and 3) Merriam-Webster, www.m-w.com: “Something built as a dwelling, shelter, or place for human activity … 2. Something put together by arranging or connecting an array of parts …” Based on these definitions, CBP determined that the term “structure” refers to “a complex system consisting of a number of different parts or sections.” In addition, EN 73.08 emphasizes that structures are stationary objects usually made from shapes, castings or other components by welding, bolting and other connections. Furthermore, the term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a “part” for tariff classification purposes. Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). Under the test initially promulgated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), an imported item qualifies as a part only if can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. Pursuant to the test set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). Hence, in HQ H022180 (May 1, 2009), we concluded that balustrades are “structures” because they are complex systems consisting of a number of parts or sections (bars riveted or bolted to a rail) that, once put in position, generally remain in position. See EN 73.08.  There, we found that the steel balusters at issue, which are used as the upright supports of a balustrade, are parts of those structures and are thereby classified under heading 7308, HTSUS. See also HQ H044637 (February 2, 2009). A balustrade is “a row of balusters topped by a rail.” Merriam-Webster, https://www.merriam-webster.com/dictionary/balustrade (last visited Sept. 14, 2017). In the deck building industry, the term “balusters” is used interchangeably with the term pickets. See The Deck Barn, http://www.thedeckbarn.com/default.aspx (last visited Sept. 14, 2017) (“Dextrusions Brand Balusters (Spindles or Pickets))”; MMC Vinyl-Aluminum Fencing & Railing, https://mmcfencingandrailing.com/what-is-a-baluster/ (last visited Sept. 14, 2017) (“Many people confuse balusters with spindles, so we’d like to clarify that these two terms actually describe the same structure. In fact, balusters are often called spindles. They are sometimes called pickets as well, though the term pickets more accurately refers to wooden stakes driven into the ground (typically to form a fence).”); Decks.com, http://www.decks.com/how-to/332/deck-railing-balusters (last visited Sept. 14, 2017) (“Balusters or pickets are the rail components used to provide infill for deck guard rails.  IRC code prohibits guard rails from having any openings that would allow a 4" sphere to pass through.  This rule produces the need for an attractive and economical repeated system for filling in the openings between rail posts and rail top and bottom members.”). In fact, the iron and steel balusters at issue in HQ H022180 and HQ H044637 were similar to the pickets here. Once