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