Balustrades

The quickest way is to look at the rulings already made

See; http://rulings.customs.gov/index.asp

and type in your product into the search window. You will get a listing of rulings already made under the column "Ruling CategoryTariff No" click on the numbers and read the rulings. If it is an exact match to your product, it is a fair guess that this is the code they will accept.

Failing a match, You can also ask for a ruling. See the other rulings for an example of how to write them. This is the safest, however, takes the longest.

http://www.usitc.gov/tata/disclaimer.htm

Thanks for your reply, however; I don't need help with the law, I need help with the facts. I'm a lawyer who specializes in Customs law and I have been writing ruling requests for 18 years. The first thing I did was research the tariff, the HTS Explanatory Notes, and the rulings (although, I use an updated software product called Customs Info that has everything Customs publishes plus much more that Customs hasn't published electronically). I know what Customs' position is and it's represented by a single NIS ruling (NY C89444) that holds, without analysis, that balusters are classifiable in a basket provision for articles of iron or steel not classified elsewhere. What I am looking for is factual ammunition to persuade Customs that the classification I'm promoting, not the one in the published ruling,is correct. That's what a good ruling request should do.

If the part is an integral part constructed as a continuation of the main structure, that is is built into the main structure not added at a later date, or constructed and fixed to the original structure. So a metal construct bolted on is a seperate item. A brick built structure that shares the same original construction is not seperate entity.

My brothers are involved in frieght traffic management. Let me see if I can forward this thread to them and get you an answer.

Despite the use listed in the rulings, I believe the rulings are there to protect US manufacturers. Therefore they are based on how the item is manufactured, whether or not it is manufactured in the US, how much protection the US Industry needs, and not its use. The Usage terms is simply to identify the item.

I suggest that you redirect your efforts to the material sources and manufacture processes.

What?

First, though there definitely is protectionism in the U.S. law (efforts made to protect U.S. interests), it is not properly pursued via tariff classification. Tariff classification is intended to be interest neutral. The protectionism can be invoked via the establishment of tariff rates or other measures (although the U.S., as signatory to the WTO, has agreed to various limitations re tariff rates). Also, the U.S. government long ago realized that focusing on the effects of world trading patterns on U.S. manufacturers was too narrow a viewpoint. The wiser viewpoint is one that considers the larger U.S. economy and the quality of life of its citizens. That is, protectionism that benefits some U.S. manufacturers does so at a broader cost. That is, it often burdens other manufacturers and makes them less able to compete in world commerce by increasing costs for U.S. industrial and private consumers.

Second, in the U.S., it is the language of the law that governs, not any ulterior motives (e.g., protecting U.S. industry). Unless the motive is provided for in the language of the law, the purpose cannot legitimately be pursued. Thus, whether U.S. industry is protected or harmed by the classification issue is completely irrelevant. Completely irrelevant.

Third, an article imported into the U.S. is generally classifiable based on what it "is" at the time of importation. Some tariff provisions reference manufacturing processes and some provisions reference use. Many tariff provisions make a distinction on the material used. In the "structures" provision, for example, the article being imported (i.e., whether a "structure," a "part of a structure," or a basic structural member "prepared for use in structures) must be made of iron or steel.

Fourth, the relevant tariff language is that of the "Harmonized Tariff System" (HTS). The language of the HTS was developed pursuant to an international effort to establish a uniform tariff for world trade. Although adopted by nations as their domestic law, adopting nations are not allowed to monkey with its basic language (to the 6-digit subheading level). The U.S. is one of well over a hundred countries that have adopted the HTS.

Fifth, the relevant legal language is as follows:

" Structures ... 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:"

Sixth, as I explained in my initial and subsequent postings, I'm not seeking assistance with the applicable law. I'm seeking factual assistance illuminating the definitions of "structures," "balustrades," and "balusters." I would expect that persons involved in designing or building structures would have some input, especially if familiar with a wide range of balustrades types, methods of construction, uses, etc. My goal is to demonstrate that "balusters," as they are parts of "balustrades," are properly classifiable in a provision that specifically references "structures" (e.g., "balustrades") and "parts of tructures" (since a "baluster" is, by definition, a part of a designated "structure," it should go here, right?).

Last, my task is not dissimilar to quantifying the number of angels that dance on the head of a pin, but the financial impact and number of persons affected is large.

Note: Following are the rules that govern classification under the HTS:

GENERAL RULES OF INTERPRETATION

Classification of goods in the tariff schedule shall be governed by the following principles:

1. The table of contents, alphabetical index, and titles of sections, chapters and sub-chapters are provided for ease of reference only;
for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions:

2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall
also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of
that material or substance with other materials or substances. Any reference to goods of a given material or substance shall
be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general
description. However, when two or more headings each refer to part only of the materials or substances contained in mixed
or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) 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.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

4. Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.

5. In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:

(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles
for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;

(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall
be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.

6. 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.

ADDITIONAL U.S. RULES OF INTERPRETATION

1. In the absence of special language or context which otherwise requires--

(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States
at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;

(b) a tariff classification controlled by the actual use to which the imported goods are put in the United States is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered;

(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory; and

(d) the principles of section XI regarding mixtures of two or more textile materials shall apply to the classification of goods in any provision in which a textile material is named.

_{Didn't mean to upset you. The fact is, that the whole system of classification was created to define separate tariffs and controls on imports.} And you are right it is not just the US_{, however, your blog specifically mentioned the US. The best reason to get a different classification is to pay fewer tariffs.}

But we are getting off topic.

Back to the original request: here are a number of links for definitions.

The definition of a staircase includes a baluster as a component.

http://www.brainyquote.com/words/st/staircase223417.html

http://www.step1stairworks.com/resources.html

Defined as part of a guard

Handrail:

http://www.customiron.com/glossary.html

Baluster:

http://www.wordsmyth.net/live/home.php?content=wotw/2000.0417/wotw_language#word4

http://www.answers.com/topic/baluster

http://www.thefreedictionary.com/baluster

http://encyclopedia.thefreedictionary.com/baluster

http://en.mimi.hu/home/baluster.html

Techno, wow! Thanks for all of the leads.

I wasn't upset (my wife tells me I come across that way when I shift into advocate mode), I just wanted to focus my request and it often helps to write it all out so that even someone unfamiliar with the law has an idea of how the law applies to the facts. I'll chase the leads.

Personally, I think it's a straightforward issue (balusters are, by definition, parts of balustrades and properly classifiable in the "structures and parts of structures" provision). Thus, I think that U.S. Customs is wrong.

U.S. Customs is often wrong and, though its classification "experts" have the authority to speak for Customs, they are constrained by the law and are no better situated to know it than anyone else.

I think that Customs initially simply missed the "structures" provision, overlooking it entirely. Now, since that 1998 ruling has been published, changing the result requires publication of a formal proposal to modify process, etc. Also, the rulings Customs has issued on other articles where the "structures" provision was discussed, show a definite bias away from that provision into provisions with higher duties (interpreting the law to justify collection of higher duties). At the current stage of things, it's easier for Customs to hope my client acquiesces and doesn't press for change than give the issue fresh consideration. We will press, however, and we'll give Customs HQ an opportunity to review the 1998 decision made a t a lower level. If we don't get relief there, we'll go to Court, where we win more often than not.

You said "show a definite bias away from that provision into provisions with higher duties ".

This is contrary to the Free Trade agreements that dictate a gradual elimination of all tarrifs.

Yes it is. Although the U.S. has not raised those tariffs contrary to the agreement, its decisions do exhibit a bias away from low duty provisions to higher duty alternatives. Governments can and do misbehave.

Don't they just know how to trot it out.

Well a balustrade is no good with out the balusters. Also the balusters are no good with out the balustrade. They are interdependent and can not be used in isolation. They must be manufactured as a set of parts. If all the parts are purchased as a single item, then they must be a single homogeneous item when assembled. The only problem occurs when parts (balusters) can be purchased as pick and mix items. Then by definition they must be separate items (sub assemblies). Even though they will be used to make up a new whole when put together with the balustrade.

UPDATE:

It's official, extremely knowledgable and wise attorneys employed by and serving U.S. Customs and Border Protection (CBP), at its HQ in D.C., gave the tariff classification of iron/steel balusters an intellectually unbiased rethinking (i.e., showing no indication of any non legal protectionist bias in favor of U.S. industry) and ultimately agreed...within the Harmonized System (HS) iron/steel "balusters" are properly classified as "parts" of "structures" and, thus, properly classifiable under HS 7308.90.

Thanks to all participants in the thread whose comments and suggestions helped prompt me sharpen my tools.

Following is a copy of the formal ruling published in the CROSS system at www.cbp.gov.

HQ H022180
May 1, 2009 CLA-2 OT: RR: CTF: TCM: H022180 RM
CATEGORY: Classification
TARIFF NO.: 7308.90.95
Port Director San Francisco Service Port U.S. Customs and Border Protection 555 Battery Street, Room 319 San Francisco, CA 94111
RE: Steel Balusters; Application for Further Review of Protest No. 2809-07- 100714
Dear Port Director:

The following is our decision regarding the Application for Further Review ("AFR") of Protest No. 2809-07-100714, timely filed by counsel on behalf of House of Forgings, Inc., concerning the classification of steel balusters under the Harmonized Tariff Schedule of the United States ("HTSUS").
FACTS:

This protest concerns steel balusters, i.e., uprights used to support a handrail, that, when attached to the handrail, form what is known as a balustrade. The instant balusters are edge-worked on one side; specifically, they are turned, forged, or otherwise reduced or formed to a circular dimension, and perforated for positive orientation into a receiving pocket on the underside of the top rail. Most have an ornamental or architectural surface finish. Pictures of various types of balusters were submitted along with the request.
Protestant entered the merchandise on June 6, 2006, under heading 7308, HTSUS, which provides in relevant part for "Structures … and parts of structures … of iron or steel." U.S. Customs and Border Protection ("CBP") liquidated the goods on May 18, 2007, under heading 7326, HTSUS, as "Other articles of iron or steel." Protestant timely filed the instant protest and AFR on November 14, 2007.

ISSUE:

Whether the steel balusters are classified under heading 7326, HTSUS, as other articles of iron or steel, or under heading 7308, HTSUS, as parts of structures?
LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The Protest was timely filed, within 180 days of liquidation for all involved entries (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.108-429, §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 2809-07-100714 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(c) because the decision against which the Protest was filed involves matters previously ruled upon by CBP or by the courts but facts are alleged or legal arguments are presented which were not considered at the time of the original ruling. Specifically, Protestant argues that in New York Ruling Letter ("NY") C89444, dated July 15, 1998, CBP did not consider the classification of steel balusters in heading 7308, HTSUS, as "Structures … and parts of structures … of iron or steel." In that ruling, CBP classified metal balusters under heading 7326, HTSUS, as "Other articles of iron or steel." That file is not available for our review as a result of the terrorist attacks of September 11, 2001. However, based on the text of the ruling, we believe that classification under heading 7308, HTSUS, was not considered.

Classification under the HTSUS is made 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 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.
The 2006 HTSUS provisions under consideration are as follows:

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:

7326 Other articles of iron or steel:

Protestant argues that the subject balusters are classified under heading 7308, HTSUS, as parts of structures. He submits that balustrades are per se structures and the balusters are parts thereof. In the alternative, Protestant argues that the balusters are classified under heading 7308, HTSUS, as "plates, rods … and the like, prepared for use in structures, of iron or steel."
Heading 7308, HTSUS, provides for "Structures … and parts of structures … of iron or steel." 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." See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). 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. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation").
In Headquarters Ruling Letter ("HQ") 967415, dated August 1, 2005, CBP drew from the following dictionary sources to define the term "structure":
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.
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.
Merriam-Webster's Dictionary Online, available at www.m-w.com:
1. 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 explains that:
Structures are characterized 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, wielding, etc.
We conclude 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. It follows 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 HQ H044637, dated February 2, 2009. As such, we need not address Protestant's alternative argument concerning classification under heading 7308, HTSUS, as rods prepared for use in structures.
HOLDING:

By application of GRI 1, the steel balusters are classified under heading 7308, specifically in subheading 7308.90.95, HTSUS, which provides for: "Structures ... and parts of structures (for example ...balustrades ...) of iron or steel; ...: Other: Columns, pillars, posts, beams, girders, and similar structural units: Other." The 2006 column one, general rate of duty is: Free.

Since reclassification of the merchandise will result in a lower rate of duty than the liquidated rate, you are instructed to allow the Protest in full. 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.

Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web 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