CLA-2 RR:TC:FC 958100 ALS

Area Port Director of Customs
U.S. Customs Service
1000 Second Ave., Room 2200
Seattle, WA 98104

RE: Application for Further Review of Protest 3001-95-100575, dated August 15, 1995, Concerning Off-The-Road Tires

Dear Mr. Morgan:

This ruling is in reference to the protest that was filed against your decision regarding multiple entries for certain Toyo brand off-the-road tires.

FACTS:

The articles under consideration are certain off-the-road tires in 4 different categories based on intended use, i.e., earthmover tires, loader and dozer tires, grader tires and industrial tires. The importer claims that the tread on these tires meets the definition for "herring-bone" or similar tread tires as that term is used in subheading 4011.91, Harmonized Tariff Schedule of the United States Annotated. The tread design of these tires are stated to be either specifically covered by New York Ruling Letter 807226 (NYRL), dated March 26, 1995, or to meet the criteria of that ruling letter. The entries were liquidated under the provision for other off-the- road tires, i.e., tires without a herringbone or similar design.

ISSUE:

Do the subject tires have a herring bone or similar tread?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI'S) taken in order. - 2 -

GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

The importer has indicated that it believes that the classification of certain of its off-the- road tires covered by the entries, the subject of this protest, were liquidated in conflict with the holding in NYRL 807226, dated March 28, 1995. It states that all the entries cover new pneumatic tires with a "herring-bone" or similar design. It also noted that its tires are classified in accordance with the Tire and Rim Association (TRA) coding system. Tires with a TRA code beginning with the letter "E" are tires for earthmover equipment which includes large dump trucks. Tires with a TRA "L" code are for loader and dozers, "G" tires are for graders and "R" tires are for industrial purposes such as forklift use.

Prior to considering which tires might have "herring-bone" or similar tread, we note that such a determination is only necessary for tires falling under the "Other" provision of subheading 4011.91, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). New pneumatic tires for various types of vehicles, e.g., cars, trucks, buses, come under subheadings appearing earlier under the same heading and would be classified thereunder,

In that regard, we note that application chart of off-the-road tires appearing in the importer's catalog indicates that certain earthmover tires with a TRA code E-1, E-3, E-4 and E-7 are suitable for dump trucks. Accordingly, they would be classifiable in subheading 4011.20.10 or subheading 4011.20.50, HTSUSA, depending on whether they were of radial construction or other type of construction. This would cover tires bearing the following TRA/company coding: E-1/R-5, E-3/G-18, E-3/G-44, E-3/T-331, E-4/G-18ET, E-4/G-28ET, E-4/G-36ET, E-4/T-431, E-4/T-432, E-4/T-433, E-4/T451 and E-7/D-1.

We discussed the meaning of the term "herring-bone" with the importer and various industry representatives. We determined that such term is not a current term in the U.S. industry, although one industry representative remembered the term being used in a colloquial manner in the distant past. It was used to refer to a tread pattern consisting of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slant alternating row by row. These short slanted rows would meet in the center of the tire tread to form a "V." This is in line with various dictionary definitions of the term herring-bone, including those referenced by the importer. We also consulted the Explanatory Notes (EN) to the Harmonized System, specifically 40.11 thereof, which represents the view of the international classification experts. All the tire treads pictured therein, except for one, have rows of short slanted parallel lines going in opposite directions with the slant alternating row by row, which meet in the center of the tire and form a "V". One of the tire treads pictured therein has short slanted parallel line with the slant alternating row by row and these rows meet in the center of the tire tread, they form what would appear to be a very shallow "V" which might be better described as a "U". Based on our analysis of this information, we have concluded that a true "herring-bone" tread has alternating rows of tread - 3 -

going in opposite directions, on the diagonal, toward the center of the tire with the tread forming a "V" shape design in the center thereof. We have further concluded the term "similar tread" appearing in heading 4011.91, Harmonized Tariff Schedule, is descriptive of a tire tread having the above-noted slanting alternating tire tread which forms a shallow "V" in the center of the tire tread.

With such concept in mind we analyzed other tread patterns listed in application chart of off-the-road tires in the importer's catalog. Those tires are labeled earthmoving tires designed for use on motor scrapers and wheel cranes; loader and dozer tires designed for use on loaders, dozers, mobile cranes and fork lifts; grader tires designed only for machine graders; and industrial tires designed for use on straddle carriers, tower tractors, and fork lifts. All those tires have the aforementioned alternating rows of slanted tread flowing in opposite directions from the center of the tread and forming a "V" in the center of the tread and would be considered to have a "herring-bone" tread. They include tires with the following TRA/company coding: E-2/G-15, E-2/G-29, G-2/G-15, G-2/W-15, G-2/G-57, L-2/G-15, L-2/G-29, L-2/G-54 and L-2/W-15.

We have concluded that the remaining tires in such chart, other than those designed for use on dump trucks, have neither a "herring-bone" or similar tread. These tires, coded and designed for use as noted in the immediate preceding paragraph, are as follows: E-3/G-45, E-3/T-361, L-3/G-18, L-3/G-35, L-3/G-39, L-3/G-62, L-3/T-331, L-4/G-18ET, L-4/G-36ET, L-4/G-64, L-4S/S-15, L-4 or L-4S/S-16, L-5/G-25, L-5/G-50, L-5/G-55, L-5/G-65, L-5S/S-25, L-5S/S-26 and G-3/G-18. We have also concluded that the following industrial tires which do not have a TRA code come within the grouping of tires which have neither a "herring-bone" or similar tread: R-5, G-18 and S-10. We have further concluded that New York Ruling Letter (NYRL) 807226, dated March 28, 1995, which held that 5 tread patterns were either "herring-bone" or similar tread no longer reflects Customs thinking with regard to 3 tread patterns. We note that the tread pattern of 2 of those tires, E-4/G-36ET and G-3/G-18, form a zig-zag pattern and have neither short slanting lines going in the opposite directions from the center of the tread nor do they have a tread pattern which forms a "V" at the center of the tread. Likewise, pattern E-3/G-44, is merely a series of lugs flowing across the entire tread surface of the tire and slanting in one direction. We also note that 2 of those tires, having a TRA code "E" and suitable for use on a dump truck, would be classifiable in subheading 4011.20, HTSUSA, which covers new pneumatic tires of a kind used on buses and trucks. Accordingly, NYRL 807226 will be modified pursuant to the provisions of section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L 103-182, 107 Stat. 2057).

HOLDING:

Off-the-road suitable for use on buses and trucks are classifiable in subheadings 4011.20.1025 or 4011.20.1035, HTSUSA, if of radial construction, or in subheadings - 4 -

4011.20.5030 or 4011.20.5050, HTSUSA, if of another construction. Tires bearing the following TRA/company coding are so classifiable: E-1/R-5, E-3/G-18, E-3/G-44, E-3/T-331, E-4/G-18ET, E-4/G-28ET, E-4/G-36ET, E-4/T-431, E-4/T-432, E-4/T-433, E-4/T-451 and E-7/D-1. Radial tires of this group were dutiable at a general rate of duty of 4 percent ad valorem at the time of entry (currently 4 percent ad valorem). Tires of this group of other construction were dutiable at a general rate of duty of 3.9 percent ad valorem at the time of entry (currently 3.6 percent ad valorem).

Other off-the-road tires suitable for use on earthmoving equipment (motor scrapers and wheel cranes), loader and dozer equipment (loader and dozer, mobile cranes, and fork lifts), machine graders only, and industrial tires are classifiable in subheading 4011.91, HTSUSA, if having "herring-bone" or similar tread or in 4011.99, HTSUSA, if having another tread pattern. To be considered as having a "herring-bone" or similar tread, the tread pattern must consist of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slant alternating row by row. These short slanted rows would meet in the center of the tire tread to form a "V." Tires bearing the following TRA/company coding would be considered to have a "herring-bone" or similar tread: E-2/G-15, E-2/G-29, G-2/G-15, G-2/W-15, G-2/G-57, L-2/G-15, L-2/G-29, L-2/G-54 and L-2/W-15. Such tires classifiable in subheading 4011.91.1000, HTSUSA, were subject to a free general rate of duty at the time of entry (currently free). Such tires classifiable in subheading 4011.91.5000, HTSUSA, were subject to a general rate of duty of 3.2 percent ad valorem at the time of duty (currently 1.6 percent ad valorem).

Off-the-road tires suitable for the uses noted in the paragraph immediately above which have neither "herring-bone" or similar tread, as described in that paragraph, would be classifiable in subheading 4011.99, HTSUSA. Such tires classifiable in subheading 4011.99.1000, HTSUSA, were subject to a free general rate of duty at the time of entry (currently free). Such tires classifiable in subheading 4011.99.4000, HTSUSA, were subject to a general rate of duty of 4 percent ad valorem at the time of entry (currently 4 percent). Such tires classifiable in subheading 4011.99.8000, HTSUSA, were subject to a general rate of duty of 3.9 percent ad valorem at the time of entry (currently 3.6 percent).

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance and except as hereafter noted. Insofar as any of the tires covered by the instant protest were specifically covered by NYRL 807226, dated March 28, 1995, and since the recipient of a ruling is, pursuant to section 177.9(a), Customs Regulations, entitled to rely thereon until it is modified or revoked, you are instructed to allow the protest as to those tires specifically covered by the ruling.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(1)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to - 5 -

the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals
Division