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HQ 967415

August 1, 2005

CLA-2 RR:CR:GC 967415 RSD


TARRIF NO. 7326.90.8587

Port Director
U.S. Customs and Border Protection
2350 North Sam Houston Parkway
East Suite 1000
Houston, Texas 77032-3126

RE: Protest 5301-04-100284; Swellex Rock Bolts and Face Plates

Dear Port Director:

This is our decision on protest 5301-04-100284 filed by counsel on behalf of Atlas Copco CMT against your decision regarding the classification of the Swellex rock bolts and face plates under the Harmonized Tariff Schedule of the United States (HTSUS). Counsel forwarded supplemental information regarding the product via e-mail on March 22, 2005, and sent additional argument in support of the Protest on April 29, 2005.


The merchandise at issue is the Swellex rock bolt system. It is designed to secure roof tunnels and mines. Rockbolting is the most common method used for rock reinforcement in both civil engineering and mining applications. The Swellex rock bolts are designed to meet the demands of mining and construction applications based on rock bolts for ground reinforcement. The product consists of the bolt, an installation rod with chuck, and the face plate. The bolt is a steel tube originally having an outer diameter of 41mm and a wall thickness of 2mm. The tube is mechanically reshaped to an outer diameter of 25.5mm. The Swellex rock bolts are placed in a drilled hole and expanded by high pressure water. Swellex rock bolts derive their suitability to a large range of ground conditions from their unique friction generating mechanism, which involves inflation of a folded steel tube by high water pressure.

During the expansion process, the Swellex bolt compacts the material surrounding the hole and adapts its shape to fit the irregularities of the bore hole. A combination of frictional and mechanical interlock is generated throughout the entire bolt length, reinforcing and increasing the load-bearing strength of the rock surrounding the drilled hole. The load of the rock is transferred to the Swellex bolt directly without any necessary auxiliaries such as mechanical locking devices or grouting agents. Rock reinforcement is unaffected by the presence of water, which is squeezed out of the contact rock. Swellex rock bolts and the quality assured installation procedure permits rock reinforcement where expensive external support is normally required.

A rockbolt face plate or bearing plate serves the purpose to support the loose rock around the rockbolt head as well as to distribute the load that comes on the bolt head uniformly into surrounding rock. The Swellex face plate is specially designed to support the surface rock without introducing unfavorable stresses on the bolt head.

The merchandise was entered on June 1, 2003. The entry under protest was liquidated on April 16, 2004 under heading 7326, HTSUS: as Other articles of iron or steel. This protest was filed on May 19, 2004. On July 14, 2004, Counsel filed an amendment to the protest in which a request for application for further review was made. In its protest, Protestant contends that the merchandise should be classified in heading 7308, HTSUS, as structures.


Whether the Swellex rock bolt system is classified in heading 7308, HTSUS, as a structure or in heading 7326, HTSUS, as other articles of iron or steel.


Initially, we note that the protest and the amended protest with the request for further review were timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied.

The HTSUS provisions under consideration are as follows:

7308 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:

7308.40.00 Equipment for scaffolding, shuttering, propping or pit propping.

7326 Other articles of iron or steel:

7326.90 Other:



7326.90.85 Other.

In NY J89541 dated October 16, 2003, Customs and Border Protection (CBP) ruled that Swellex rock bolts and face plates were classified in heading 7326, HTSUS, as other of articles of iron or steel. Counsel for the Protestant challenges NY J89541 and maintains that the Swellex rock bolts and face plates should be classified in heading 7308, HTSUS, as structures. While originally contending that the rock bolt system should be specifically classified in subheading 7308.90.95, HTSUS, as: Other structural items, counsel has modified in its position and counsel now argues that the Swellex rock bolt system should be classified in subheading 7308.40.00, HTSUS, as Equipment for scaffolding, shuttering, propping or pit-propping.

According to counsel, the rock bolt and plates are used to prop up mine and tunnel roofs. Counsel explains that the Swellex bolts are inserted vertically into a mine roof and by the aid of swelling and the face plates, they are used to prop it up. Counsel compares the Swellex rock bolts to cast-iron or steel S-props that are inserted in the walls of old stone houses. The Swellex technology makes vertical supports reaching to the mine floor and the crossbeams unnecessary. The rock bolts thereby act as props without reaching the mine floor.

Counsel also notes that subheading 7308.40.00, HTSUS, uses the verb language “for propping”. The purpose of the Swellex bolts and face plates is to prevent a mine roof or tunnel from falling, collapsing or sagging. Thus, since Swellex tubes are used for “propping” up the mine or tunnel, they should be considered as equipment for propping. Consequently, counsel concludes that the Swellex rock bolt system should be classified in subheading 7308.40.00, HTSUS as equipment for propping.

In considering counsel’s argument that the Swellex rock bolt system are classified in subheading 7308.40.00, HTSUS, it appears that counsel is not correctly applying GRIs. According to GRI 1, we must first determine classification at the 4-digit heading level before classification in the proper eight -digit subheading can be determined. See HQ 966482, dated August 19, 2003. Essentially, counsel is classifying the Swellex rock bolts at the eight digit subheading level of subheading 7308.40.00, HTSUS, without first establishing that they meet the terms of the heading at four digit heading level of heading 7308, HTSUS. Consequently, before determining if the Swellex rock bolts are correctly classified in subheading 7308.40.00, HTSUS, we must consider if the Swellex rock bolt system meets the terms of heading 7308, HTSUS.

Heading 7308, HTSUS covers structures and parts of structures of iron or steel. The heading lists examples of the items that would be considered parts of structures. This means that in order to be classified in heading 7308, HTSUS, the Swellex rock bolt system must be able to be described as a structure or a part of a structure of iron or steel.

In order to better understand heading 7308, HTSUS, we have reviewed the Explanatory Notes of the Harmonized Commodity Description and Coding System (ENs). When interpreting and implementing the HTSUS, the ENs may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. CBP believes the ENs should always be consulted. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 73.08 states:

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 so-called 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 cross-section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing.

However, the term "structures" is not defined in the HTSUS or the ENs. In cases where tariff terms are undefined, they are to be construed in accordance with their common and commercial meanings which are presumed to be the same (Nippon Kogaku, Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380 (1982); see also Nylos Trading Company v. United States, 37 CCPA 71, 73, C.A.D. 423 (1949), and Winter-Wolff, Inc., v. United States, CIT Slip Op. 98-15 (Customs Bulletin and Decisions, March 25, 1998, vol. 32, no. 12, 71, at 74, "When, however, a tariff term is not clearly defined by the statute or its legislative history, it is also fundamental that the correct meaning of the tariff term is ‘presumed to be the same as its common or dictionary meaning in the absence of evidence to the contrary’").

The web site www.Dictionary.com defines the word “structure” as:

Something made up of a number of parts that are held or put together in a particular way: hierarchical social structure. The way in which parts are arranged or put together to form a whole; makeup: triangular in structure. The interrelation or arrangement of parts in a complex entity: political structure; plot structure. Something constructed, such as a building. Thesaurus

The American Heritage® Dictionary of the English Language: Fourth Edition. 2000 gives the following definition of “structure”:

...Something made up of a number of parts that are held or put together in a particular way: hierarchical social structure. 2 The way in which parts are arranged or...

Merriam-Webster Online Thesaurus offers the additional descriptions of the term “structuture”:

1 something built as a dwelling, shelter, or place for human activity the only structure on the island is an old Spanish fort--or what's left of 2 something put together by arranging or connecting an array of parts the Egyptian pyramids are among the most remarkable structures ever built the arrangement of parts that gives something its basic form the basic structure of all those tract houses is the same: basically, a box --

Based on these definitions, we conclude that in order to be considered a structure, an item must be a complex system consisting of a number of different parts or sections. In this instance, the Swellex rock bolt system consists of just two basic parts, the rock bolt and the face plate. (The installation rod with chuck was a minor part used for installing the Swellex rock bolt system.) In our judgment, since the rock bolt system consists of only two basic parts, it cannot be considered a structure. Furthermore, since the Swellex rock system is a complete unit, it cannot be considered a part of a structure.

In support of Protestant’s position, Counsel points to the holding in NY 831394 dated September 2, 1988, which concerned Split-Set Stabilizers used to support the roof of a mine. The Split-Set Stabilizers were comprised of high-strength steel tubing with slits extending the full length, a taper at the upper ends and a retainer ring at the bottom. The stabilizer absorbed roof movement without the loss of support, and it did not loosen from adjacent blasting. CBP indicated that the applicable classification for the Split Stabilizers under impending HTSUS, which was not yet in effect, was subheading 7308.9090, HTSUS. Although the Split-Set Stabilizers classified in NY 831394 appears to perform a function similar to the Swellex rock bolts, we believe that the findings of NY 831394 should not be applied to this case. First, we note that the HTSUS was not in effect at the time NY 831394 was issued, and thus the holding in NY 831394 regarding classification of the Split Set Stabilizers under the HTSUS is considered merely advisory. Moreover, the Split-Set Stabilizers consisted of tubing. Tubes etc. “prepared for used in structures of iron or steel” are among the items that are specifically mentioned as being included in Heading 7308, HTSUS. In contrast, the Swellex bolts involved in this case are not tubes prepared for use in structures. In addition, the Swellex bolts do not fit within the description of any of the other items mentioned in Heading 7308, HTSUS.

On the amended protest (Customs Form 19) requesting further review, Counsel also cited to HQ 963155 dated February 1, 2000, in which CBP held that components of a linear shoring system for use on construction sites as temporary reinforcing or support element in trenches and excavations were provided for in heading 7308, HTSUS, as structures. However, the product that was ruled upon in HQ 963155 is very different from the Swellex rock bolts under consideration in this case. The product reviewed in HQ 963155 were parts of a complete system consisting of multiple parts such as linear sheeting supports or upright posts, top and base bogie cars, etc. In this instance, as already mentioned, the Swellex rock bolt system consists of just two basic parts.

Therefore, we conclude that the Swellex rock bolt system does not meet the terms of heading 7308, HTSUS. This determination is consistent with NY J89541, in which CBP held that classification under heading 7308, HTSUS, was precluded because the Swellex rock bolts and face plates are not used in conjunction with "structures" as that term is defined in the ENs.

Heading 7326, HTSUS, is a general basket provision covering other articles of iron or steel. EN 73.26 states:

This heading covers all iron or steel articles obtained by forging or punching by cutting or stamping or by other processes such folding, assembling, welding truning milling or perforating Other than articles included in the preceeding heading of this Chapter or covered by Note f to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature. Because no other heading in the HTSUS more accurately describes the articles under consideration, we conclude that the Swellex rock bolt system is properly classified in the general basket provision of heading 7326, HTSUS, as other articles of iron or steel. As set forth in NY J89541, the applicable subheading for the Swellex bolts and face plates is subheading 7326.90.85, HTSUS, which provides for other articles of iron or steel: Other: Other: Other: Other.


In accordance with GRI I, the Swellex rock bolt system is classified in heading 7326, HTSUS. It is specifically provided for in subheading 7326.90.8587, HTSUS as: Other articles of iron or steel: Other: Other: Other: Other. The 2003 general, column one rate of duty is 2.9 percent ad valorem. Duty rates are provided for the protestant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

You are instructed to DENY the protest in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, June 2002, pp. 18 and 21), 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 Regulations and Rulings 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.


Myles B. Harmon, Director

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