CLA-2 RR:TC:FC 959730 ALS
4011.20.5050; 4011.91.5000; 4011.99.4000; 4011.99.8000
Port Director of Customs
U.S. Customs Service
300 South Ferry St.
Terminal Island, CA 90731
RE: Application for Further Review of Protest 2704-96-102281,
date July 15, 1996, Concerning Certain Off-The-Road
Tires
Dear Ms. Adams:
This ruling is in reference to the protest that was filed
against your decision of June 21, 1996, regarding an entry for
Triangle brand off-the-road tires style TL-612.
FACTS:
The articles under consideration are off-the-road tires,
style TL-612, designed for use on earthmoving and loader. 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 4011.91.5000, Harmonized Tariff Schedule of
the United States Annotated (HTSUSA). It is stated that the
tires are classified in accordance with the Tire and Rim
Association (TRA) coding system. They bear a TRA code "E" which
indicates that they are tires of earthmover equipment and a TRA
code "L" which indicates that they are for loaders and dozers.
The importer indicates that all these tires concurrently bear
both "E" and "L" codes
ISSUE:
Do the subject tires have a herring bone or similar tread?
- 2 -
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
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.
According to the importer's literature, as further
telephonically confirmed by the importer, the tires under
consideration, style TL-612, bear a dual TRA code of "E" and "L",
indicating that they are designed for earthmover equipment and
loaders and dozers. Based on an application chart provided in
connection with another protest, we note that a tire with the
same type of tread and a TRA code E-3 is listed as being suitable
for dump trucks. We presume that these are the ultra-large dump
trucks that one would find at a road excavation site.
Prior to considering whether the instant tires might have a
"herring-bone" similar tread, we note that such a determination
is only necessary for tires falling under the "Other " provision
of subheading 4011.91, 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, depending on their size and construction,
i.e., radial or other.
We have discussed the meaning of the term "herring-bone" or
similar tread 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. We also
consulted the Explanatory Notes (EN) to the Harmonized System,
specifically 40.11 thereof, which represent 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 lines 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 going in opposite directions, on the
diagonal, toward the center of the tire with the tread forming a
"V" shape - 3 -
design in the center thereof. We have further concluded that the
term "similar tread" appearing in heading 4011.91, HTSUSA, is
descriptive of a 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 examined the tread pattern of
the instant tires. We note that the tread pattern is of a zig-zag design and that it has neither the short slanting lines going
in the opposite directions from the center of the tread nor does
it have a tread pattern which forms a "V" at the center of the
tread. We have concluded that an off-the-road tire with a zig-zag pattern, would not be classifiable under the provision for
"herring-bone" or similar tread. If not classifiable under
subheading 4011.20, HTSUSA, the provision for tires of a kind
used on buses or truck, tires with the zig-zag tread pattern
would be classifiable in the "Other" provision of subheading
4011.99, HTSUSA. We have further concluded that if the tires
with such tread pattern bear a dual TRA code and under one code
they would be considered suitable for trucks, they would all be
classified under the subheading for truck tires, 4011.20, HTSUSA,
since that provision comes earlier in the tariff schedule than
does the previous referenced "Other" provision.
HOLDING:
Triangle TL 612 off-the-road tires with a zig-zag tread
pattern bearing a Tire and Rim Association (TRA) E-3 code, with
or without another code, are considered to be suitable for use on
dump trucks. They are classifiable in subheading 4011.20.1025 or
4011.20.1035, HTSUSA, if of radial construction, or in
subheadings 4011.20.5030 or 4011.20.5050, HTSUSA, if of another
construction. Radial tires of this group are dutiable at a
general rate of duty of 4 percent ad valorem. Tires of this
group of another construction are dutiable at a general rate of
duty of 3.8 (currently 3.6) percent ad valorem. Such tires, if
bearing only a TRA L-3 code, indicating a suitability for loaders
and dozers, are classifiable in subheading 4011.99.4000 or
4011.99.80000, HTSUSA, depending on the type of construction,
since a zig-zag tread pattern is not herring-bone tread pattern.
Tires so classified are subject to a general rate of duty of 4
percent or 3.8 (currently 3.6) percent ad valorem , respectively.
Since the rate of duty under the classification indicated
above is the same as or more than the liquidated rate, you are
instructed to deny the protest in full.
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
3553-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be provided by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with this decision
must be accomplished prior to the mailing of the decision. Sixty - 4 -
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 Ruling 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.