#  HQ 963155

FEBRUARY 1, 2000

**CLA-2 RR:CR:GC** 963155 JAS

**CATEGORY:** Classification

**TARIFF NO.:** 7308.40.00

Port Director of Customs

33 New Montgomery Street, Room 1501

San Francisco, CA 94105

**RE**: Protest 2809-99-100509; Components of a Linear Shoring System

Dear Port Director:

This is our decision on Protest 2809-99-100509, filed against your
classification under the Harmonized Tariff Schedule of the United States
(HTSUS), of trench shoring structural components. The entry under
protest was liquidated on April 16, 1999, and this protest timely filed
on July 15, 1999.

**FACTS**:

The merchandise at issue is identified as components of a linear shoring
system for use on construction sites as temporary reinforcing or support
elements in trenches and excavations. A complete system consists of
multiple linear sheeting supports or upright posts, top and base bogie
cars, and inside base plates or panels, outer pressure plates, and inner
and outer top plates or panels, all of base metal. The plates and panels
will be sourced domestically. The upright posts and bogie cars are the
subject of this protest. Upright posts are vertical structural members
of steel consisting of flat bars, rolled bars and profile bars welded
together. Grooves machined along the length of each post accommodates a
bogie car that moves on rollers. A bogie car consists of top and base
car halves, bolted together in a rectangular configuration with another
structural member called a spreader which is sourced domestically and is
not a part of this protest. Bogie cars consist of steel flat bars,
special shaped bars, an "H" beam, rollers and axes, all welded together
with drilled bolt holes for attachment of the spreader. The upright
posts are placed on either side of the trench, parallel to each other,
and bogie cars run in the vertical plane between them to maintain proper
spacing and to complement the lateral support which the inner and outer
plates and panels provide.

\- 2 -

The structural components were entered under a provision of heading
7308, HTSUS, for columns, pillars, posts, beams, girders and similar
structural units, not in part of alloy steel. They were reclassified in
liquidation under another provision of heading 7308 for equipment for
scaffolding, shuttering, propping or pit-propping.

The HTSUS provisions under consideration are as follows:

**7301** Sheet piling of iron or steel, whether or not drilled, punched
or made from assembled elements; welded angles, shapes and sections, of
iron or steel:

20. Angles, shapes and sections:

    10. Of iron or nonalloy steel

> **\* \* \* \***
>
> **7308** Structures...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:
>
> **7308.40.00** Equipment for scaffolding, shuttering, propping or
> pit-propping

**7308.90** Other:

> **7308.90.30** Columns, pillars, posts, beams, girders and similar
> structural units, not in part of alloy steel

**ISSUE**:

Whether the trench shoring structural components under protest are
angles, shapes and sections of heading 7301, HTSUS.

**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.

\- 3 -

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

Counsel for the protestant maintains that the proper classification is
in a provision of heading 7301, HTSUS, for angles, shapes and sections,
of iron or nonalloy steel.

Counsel contends that the goods under protest are essentially similar to
assembled sheet piling which the 7308 ENs exclude from that heading and
refer to heading 7301. Counsel contends further that unlike the goods
under protest, which are for temporary installation, goods of heading
7308, once installed, generally remain in that position.

As to counsel's claim that the linear sheeting supports and top and base
bogie cars are similar to sheet piling of heading 7301, the ENs to that
heading, on pp.1099 and 1100, describe sheet piling angle or corner
pieces which are sections intended to form corners; joining sheet piling
sections with three or four arms for making partition walls; connecting
sheet piling sections whose shape enables them to be used for connecting
different types of sheet piling; and, sheet piling conduits, corrugated
in shape, and columns which are driven into the ground in such a manner
that they join together without being forcibly interlocked. Neither the
linear sheeting supports nor the top and base bogie car halves conform
to this EN description. Therefore, the goods do not meet the terms of
heading 7301, as sheet piling.

As to counsel's claim as angles, shapes and sections under heading 7301,
the ENs to that heading refer on p.1100 to welded angles, shapes and
sections, without further explanation, and state the Explanatory Note to
heading 72.16 applies, by appropriate substitution of terms, to profiles
obtained by welding. Initially, Chapter 72, Note 1(n), HTSUS, states in
part that angles, shapes and sections have a uniform solid cross-section
along their whole length. The heading 7216 ENs on p. 1089 state that the
sections most commonly falling in that heading are H, I, T capital
omega, Z and U (including channels), obtuse, acute and right (L) angles.
The ENs continue by stating angles, shapes and sections are usually
produced by hot-rolling, not-drawing, hot-extrusion or hot-forging or by
forging blooms or billets. The angles, shapes and sections of heading
7301, for example the Is, Ls or Ts, have the same types of
cross-sectional configuration as do those of heading 7216, except the
component parts for those of heading 7301 are joined by welding. An "L"
shape of heading 7301, for example, would be made by welding together
the two separate legs of the angle. Neither the linear sheeting supports
nor the top and base bogie car halves are constructed in this manner, as
described by the 7216 ENs. Therefore, the goods do not meet the terms of
heading 7301 as welded angles, shapes and sections.

\- 4 -

As to the liquidated provision, subheading 7308.40.00, the ENs to
heading 7308 state on p. 1108 that once they are put in position the
metal structures of that heading *generally* remain in that position.
This indicates to us that temporary reinforcing or supporting elements
may also be included if they qualify as incomplete structures or parts
thereof. The ENs continue by stating the goods of heading 7308 are *made
up from* bars, rods, tubes, angles, shapes, sections, plates, etc., by
*bolting*, riveting, etc. The linear sheeting supports and top and base
bogie cars meet this description as they are "made up" from bars and
other structural components and the bogie car halves are welded
together. Apart from the structures and parts thereof identified in the
7308 heading text, the ENs list pit head frames and superstructures
together with tubular scaffolding and *similar equipment*. The articles
under protest perform a support or reinforcing function, and therefore
qualify as equipment for propping or pit propping identified in
subheading 7308.40.00, HTSUS.

**HOLDING**:

Under the authority of GRI 1, the linear sheeting supports or upright
posts and the top and base bogie cars are provided for in heading 7308.
They are classifiable in subheading 7308.40.00, HTSUS.

The protest should be DENIED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs 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 Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.gov, by means of the Freedom of Information Act, and other
methods of public distribution.

> Sincerely,

John Durant, Director

Commercial Rulings Division