HQ 967978

MARCH 31, 2006

CLA-2 RR:CTF:TCM 967978 JAS

CATEGORY: Classification

TARIFF NO.: 7302.40.0000, 7302.90.9000, 7318.22.0000, 7326.90.8587

Port Director

U.S. Customs and Border Protection

9901 Pacific Highway\
Blaine, WA 98230

RE: I.A. 05/027; Iron or Steel Components Used in Railway or Tramway
Track

Construction

Dear Port Director:

This is our decision on Internal Advice 05/027, filed by counsel on
behalf of VAE Nortrak Ltd., against your classification of certain
components used in railway or tramway track construction under the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA).
Drawings, schematics and other materials were submitted. This request
relates to a prior disclosure VAE Nortrak filed with your office on
September 8, 2005, under the authority of Section 162.74, Customs and
Border Protection Regulations (19 CFR §162.74).

FACTS:

The merchandise under consideration consists of various iron or steel
articles used in railway track construction and identified as toe
blocks, heel blocks, filler blocks, joint bars, drop lugs, cast washers,
plates and rail brace assemblies, each consisting of a rail brace,
retention block and serrated washer. All components are imported
separately.

\- 2 -

Toe blocks and heel blocks are cast iron or steel articles that fit
snugly between the rails of a crossing frog. Crossing frogs incorporate
rail segments and are used at railway crossings to permit rails to
intersect one another. Toe blocks and heel blocks are cast with holes
passing through them to accommodate bolts that secure the blocks

to the rails of the crossing frog. Their function is to securely locate
the rails that support the train during the wheel's passage through a
crossing frog.

Filler blocks are cast articles of iron or steel that are drilled with
one or more holes to accommodate bolts that secure the blocks and rails
together. They function to create a flangeway that allows the flange of
a train wheel to pass through areas of a crossing, such as a frog, while
providing lateral support on both sides of the wheel flange.

Joint bars, also called fish-plates, are rolled steel articles used to
join together sections of rail in railway or tramway track. They contain
holes to accommodate the bolting together of a pair of joint bars, one
on each side of the two rail ends being joined, to secure and align the
rails in place.

Cast iron drop lugs are components of a hollow steel tie assembly used
at the interface of the point rods and the switch blades which are
crossing pieces. They are bolted to a composite "switch rod" to
accommodate the longitudinal movement of switch points caused by thermal
expansion.

Cast ductile iron washers, used in the construction of railway
trackwork, accommodate bolts passing through an assembly at an angle and
offer a flat bearing surface for tightening with a nut.

Plates may either be of cast iron or rolled or formed steel and have
other components welded to them. They function to fasten rail or track
work to a tie by means of spikes, coach screws or bolts, to secure and
support the trackwork.

Finally, rail braces, cast steel retention blocks and serrated washers
are imported separately and assembled, after importation, into rail
brace assemblies. These assemblies are commonly used in railway
crossings and are affixed to the rails to support and stabilize them by
increasing their resistance to the force of lateral loads generated by
passing trains. The ductile cast iron rail brace fits under the rail
head and is secured to a plate on the outside of the track. The
retention block is a steel casting that also attaches to the plate and
supports and locks the brace in place. The serrated washer is an iron
casting that holds and locks the rail brace against the retention block.

\- 3 -

The internal advice applicant maintains that the toe blocks, heel
blocks, filler blocks and drop lugs, are crossing pieces classifiable in
subheading 7302.30.00, HTSUS. He cites NY L85062, dated June14, 2005,
and NY F81465, dated January, 24, 2000, which classify what he maintains
is substantially similar merchandise in this provision. The internal
advice applicant attempts to distinguish NY L85063, dated June 14, 2005,
also to support classification of these articles in subheading
7302.30.00, HTSUS. He claims the joint bars, also known as fish-plates,
are specially provided for in subheading 7302.40.00, HTSUS. The internal
advice applicant also claims that the rail braces, retention blocks and
serrated washers are crossing pieces classifiable in subheading
7302.30.00, HTSUS, because rail brace assemblies are essential
components of railway crossings. While washers are specially provided
for in heading 7318, the internal advice applicant claims the cast
washers at issue are so specialized by design and function that they
constitute track construction material of heading 7302. Finally, the
function of the cast iron or rolled or formed steel plates is to
support, locate and fasten the rail or track work to a tie. This is said
to be akin to the function of fish-plates and sole plates classifiable
in subheading 7302.40.00, HTSUS.

The HTSUS provisions under consideration are as follows:

7302. Railway or tramway track construction material of iron or steel,
      the

> following:..,switch blades, crossing frogs, point rods and other
>
> crossing pieces, sleepers (cross-ties), fish-plates...sole plates
>
> (base plates)...and other material specialized for jointing or fixing
>
> rails:

0.  Switch blades, crossing frogs, point rods and other crossing

> pieces

7302.40.00 Fish-plates and sole plates

7302.90 Other:

7302.90.90 Other

\- 4 -

\* \* \* \*

7318. Screws, bolts..., washers (including spring washers) and similar
      articles, of iron or steel:

> Non-threaded articles:

0.  Spring washers and other lock washers

> 7318.22.00 Other washers
>
> \* \* \* \*

7326 Other articles of iron or steel:

> 7326.90 Other:
>
> Other:
>
> Other:

7326.90.85 Other

ISSUE:

Whether the described articles, or any of them, are railway or tramway
track construction material of heading 7302.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule
of the United States (HTSUS), goods are to be classified according to
the terms of the headings and any relative section or chapter notes, and
provided the headings or notes do not require otherwise, according to
GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the Harmonized System at
the international level. Though not dispositive, the ENs provide a
commentary on the scope of each heading of the HTSUS. Customs and Border
Protection (or CBP, as appropriate) believes the ENs should always be
consulted. *See* T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

\- 5 -

The internal advice applicant notes that the subject blocks are used
with railway crossing frogs to fix the frog in place or stabilize it to
eliminate movement. The claim is that toe blocks and heel blocks are
parts of crossing frogs or crossing pieces described in heading 7302,
HTSUS. We do not agree with this classification for several reasons.
Initially, heading 7302 does not provide for parts. Also, in NY L85062,
dated June 14, 2005, certain "frog inserts" used in a crossing at the
intersection of two running rails were found to be crossing frogs and
other crossing pieces classifiable in subheading 7302.30.00, HTSUS. The
toe blocks and heel blocks at issue are identified as being used
[with]{.underline} crossing frogs but are not crossing frogs or crossing
pieces themselves because the train wheels do not pass over or through
them. NY F81465, dated January 24, 2000, also cited by the internal
advice applicant, correctly classified switch points and switch tips in
subheading 7302.30.00, HTSUS. Our technical research indicates the term
*switch point* is synonymous with *switch blade* an article named in
subheading 7302.30.00 as a crossing piece. A switch tip is the planed
end of a switch blade or switch point. Switch points and switch tips are
themselves crossing pieces whereas, as indicated above, toe blocks and
heel blocks are not. However, heading 7302 also provides for other
\[track construction\] material specialized for jointing or fixing
rails. The toe blocks and heel blocks are produced to exact
specifications to fit the contour of a particular crossing frog and
their function is to locate or stabilize, i.e., "fix," the crossing frog
in place. They constitute other material specialized for jointing or
fixing rails classifiable in subheading 7302.90.90, HTSUS.

Filler blocks, on the other hand, provide lateral support on both sides
of the wheel flange. They are not crossing pieces similar to switch
blades, point rods and crossing frogs, nor do they "fix" rails under the
above analysis. The drilling of bolt holes is not merely incidental to
the casting process. It is an independent and additional operation that
advances the filler blocks beyond the condition of castings.
[See]{.underline}

HQ 959315, dated October 1, 1996. The filler blocks are provided for in
heading 7326, HTSUS, as other articles of iron or steel.

Joint bars or fish-plates are rolled steel articles, with drilled holes,
and used to join together sections of rail in railway or tramway track.
Relevant 73.02 ENs describe **Fish-plates** as "hot-rolled, forged or
cast articles of various shapes (flat, shouldered, angled, etc.) used
for jointing one rail to the next. They fall in the heading whether or
not drilled or punched." The joint bars are provided for as fish-plates
and sole plates, in subheading 7302.40.00, HTSUS.

As stated, drop lugs are used at the interface of the point rods and the
switch blades, which are crossing pieces used at the junctions or
intersections of the permanent way. Drop lugs are not crossing pieces
but parts of crossing pieces. As

\- 6 -

noted, heading 7302 does not provide for parts. Also, drop lugs are not
used to "fix" rails under the analysis provided above for toe blocks and
heel blocks. Although drop

lugs are of cast iron, they are further machined to their final shape
after casting. As such, drop lugs are not cast articles of heading 7325;
rather, they are other articles of iron or steel, provided for in
heading 7326.

The cast ductile iron washers have drilled or punched holes and are used
in railway track work construction. They must accommodate bolts passing
through an assembly and offer a flat bearing surface to hold the head of
the bolt in place to prevent turning while being tightened with a nut.
The internal advice applicant contends these are not "traditional"
washers, but are designed to conform to the profile of the rail to which
they are affixed. They have no application other than in track work and,
as such, qualify as track construction material of heading 7302. We do
not agree. There is no indication of how the washers are "specialized"
for jointing or fixing rails for purposes of heading 7302. Moreover,
heading 7318 provides, in part, for washers of iron or steel. Relevant
73.18 ENs under (E) describe **Washers** as "usually small, thin discs
with a hole in the centre (spelling original); they are placed between
the nut and one of the parts to be fixed to protect the latter. They may
be plain, cut, split (e.g., Grower's spring washers), curved, cone
shaped, etc." The cast ductile iron washers conform to this description.

The plates are identified in submitted drawings as base plates and
sleeper plates. They may be of rolled or formed steel or of cast iron
and are used in track crossings. They are often machined and have other
attachments welded to them. Their function is to locate or stabilize the
rail or track component by fastening it to a tie by means of spikes,
coach screws or bolts. 73.02 ENs under (5) describe **Sole plates**
"(base plates, sleeper plates)...used in fixing flat-bottomed rails to
sleepers \[cross-ties\]. They protect the sleepers and are fixed to them
by cramps, bolts, coach screws, spikes or, in the case of steel, by
welding." The plates at issue conform to this description. They are
classifiable in subheading 7302.40.00, HTSUS.

Finally, rail braces and retention blocks are components of rail brace
assemblies. The rail brace is contoured to attach to a rail to provide
support against lateral loads generated by passing trains while the
retention block supports and locks the brace in place. Though said to be
used in railway crossings, these articles are not compellingly similar
to crossing pieces such as crossing frogs and switch blades provided for
in subheading 7302.30.00, HTSUS. However, the rail brace is specially
designed to fit under the rail head and, together with the retention
block, stabilize or secure the rail in place. This qualifies these
articles as other material specialized for fixing rails.

\- 7 -

Imported separately, the rail brace and the retention block are provided
for in subheading 7302.90.90, HTSUS. The serrated washer is a cast
article, generally rectangular in shape, with grooves cut along its
length and with tabs or ears at each end. Its serrated face interlocks
with the matching serrated face of the rail brace to hold and lock the
brace against the retention block. The serrated washer works in concert
with the rail brace and retention block to permit the rail brace
assembly to perform its function of supporting the rails. The serrated
washer is likewise provided for in subheading 7302.90.90, HTSUS. We note
that this article does not conform to the 73.18 EN description for
**Washers** cited above concerning the cast ductile iron washers.

HOLDING:

Under the authority of GRI 1, the toe blocks, heel blocks, joint bars or
fish-plates, cast iron or rolled or formed steel plates, rail braces,
cast steel retention blocks and serrated washers are provided for in
heading 7302. The joint bars or fish-plates and the cast iron or rolled
or formed steel plates are classifiable in subheading 7302.40.0000,
HTSUSA. The rate of duty under this provision in 2005 is free. The toe
blocks, heel blocks, rail braces, cast steel retention blocks and
serrated washers are classifiable in subheading 7302.90.9000, HTSUSA.
The rate of duty under this provision in 2005 is free.

The cast ductile iron washers are provided for in heading 7318. They are
classifiable in subheading 7318.22.0000, HTSUSA. The rate of duty under
this provision in 2005 is free.

The filler blocks and the cast iron drop lugs are provided for in
heading 7326. They are classifiable in subheading 7326.90.8587, HTSUSA.
The rate of duty under this provision in 2005 is 2.9 percent ad valorem.

You are to mail this decision to the internal advice applicant, through
counsel, no later than 60 days from the date of this letter. On that
date the Office of Regulations and Rulings will take steps to make the
decision available to CBP personnel, and to the public on the Customs
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