CLA-2 CO:R:C:T 955333 CC
Peter Gonzalez
Area Director
U.S. Customs Service
110 S. Fourth St.
Minneapolis, MN 55401
RE: Decision on Application for Further Review of Protest No.
3701-93-100114; cork cylinders
Dear Mr. Gonzalez:
This is a decision on application for further review of a
protest timely filed by Lee A. Dahmer, on behalf of Badger Cork &
Manufacturing Co., against the classification of certain
cork/rubber cylinders produced in Portugal.
FACTS:
The merchandise at issue consists of cylinders made of
ground cork and synthetic rubber. This merchandise is
manufactured from raw cork that is ground to specific grades and
combined with synthetic rubber in a Banbury mixer. Each batch is
then milled into sheets ranging from -inch to 1¬-inch in
thickness. The sheets are stacked, cut into a uniform shape and
pressed into molds to form cylinders. The cylinders have a
diameter of 36 inches and range in length from 30 inches to 52
inches. After importation, the cylinders undergo slicing or
splitting into sheets before they are sold or used for further
manufacturing.
The entries covering the cork cylinders were liquidated
under subheading 4504.10.50 of the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA). The protestant claims that
this merchandise is classifiable under subheading 4504.10.10,
HTSUSA.
ISSUE:
Whether the merchandise at issue is classified under
subheading 4504.10.10, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
Heading 4504, HTSUSA, provides for agglomerated cork (with
or without a binding substance) and articles of agglomerated
cork. Subheading 4504.10, HTSUSA, provides for blocks, plates,
sheets and strip; tiles of any shape; solid cylinders, including
disks. At the eight digit level, subheading 4504.10.10, HTSUSA,
provides for vulcanized sheets and slabs wholly of ground or
pulverized cork and rubber; subheading 4504.10.50, HTSUSA, is a
residual provision that covers goods described in subheading
4504.10, but which are not provided for in subheadings 4504.10.10
through 4504.10.47.
The subject cylinders are clearly agglomerated cork,
provided for in Heading 4504. In addition, cylinders are
specifically listed in subheading 4504.10; consequently, the
subject merchandise is classifiable in that subheading. The
merchandise at issue is considered vulcanized since rubber has
been used as a binding agent. If the subject merchandise is
considered a "sheet or slab," it is classifiable under subheading
4504.10.10. If not, it is therefore classifiable under
subheading 4504.10.50.
The protestant believes that the subject merchandise should
be classified under subheading 4504.10.10 for the following
reasons: conversion from the Tariff Schedules of the United
States (TSUS) to the Harmonized Tariff Schedule of the United
States (HTSUS) was not intended by Congress to result in
significant increases in duty; Congress did not intend to impose
higher rates of duty on certain shapes of cork/rubber products;
cork cylinders are covered by the provision for vulcanized sheets
and slabs; and the cork cylinders should be considered unfinished
vulcanized sheets and slabs in application of GRI 2(a).
Classification under the HTSUSA is in accordance with the
GRI's. We have stated in many rulings that although conversion
from the TSUS to the HTSUS was intended to be revenue neutral,
duty rates may differ for the same merchandise. For example, in
Headquarters Ruling Letter (HRL) 083891, dated May 14, 1989, we
stated the following:
While the underlying intent of the conversion from
the TSUS to the HTSUS was to be revenue neutral to the
extent possible, it was also recognized that the
conversion would result, in some cases, in changes in
rates of duty. See Conversion of the Tariff Schedules
of the United States Annotated into the Nomenclature
Structure of the Harmonized System, USITC Publication
1400, 31, June 1983. In effect, therefore, the fact
that an item was previously classified in the TSUS at a
certain rate of duty is neither persuasive nor
determinative of its classification under the HTSUS.
Rather, as stated above, classification under the HTSUS
is governed by the General Rules of Interpretation
(GRI).
The petitioner has also asserted that utilizing a guide
published by the U.S. International Trade Commission (ITC), which
lists cross references under the TSUS with likely provisions
under the HTSUSA, would result in classifying the subject
merchandise under subheading 4504.10.10. We note that the guides
containing cross references list likely classifications; they are
not legally binding. The following was stated in a publication
listing cross-references from the TSUS to the HTSUS, Continuity
of Import and Export Trade Statistics after Implementation of the
Harmonized Commodity Description and Coding System, Report to the
President on Investigation No. 332-250 under Section 332 of the
Tariff Act of 1930, USITC Publication 2051, January 1988, p. 3:
The cross-references are designed to assist the
international trade community in translating a known
classification in the TSUSA into a likely
classification under the HTS. The user is strongly
cautioned against relying on the cross references in
order to determine legally appropriate tariff
classifications under the HTS. Such determinations can
only be made by the U.S. Customs Service and depend
upon the condition of an article as imported, the
applicable article provisions and rules of
classification set out in the HTS, and the body of
customs practices and regulations relevant to the
importation. These cross-references are not intended,
nor should they be viewed as a substitute for, the
traditional tariff classification process.
The second argument made by the petitioner is that Congress
intended that the provision "vulcanized sheets and slabs wholly
of ground or pulverized cork and rubber" covers "gasketing
materials," which includes the subject cork cylinders. The
starting point in determining legislative intent is the language
of the statute itself. Customs Law & Administration, Third
Edition (1984), Ruth F. Sturm at 51.3, p. 20, states the
following:
The first source for the determination of that
intent is the statutory language, which is presumed to
be used in its normal sense. Unites States v. Esso
Standard Oil Co., 42 CCPA 144, 151, C.A.D. 587 (1955);
United States v. British Cars & Parts, Inc. et al., 47
CCPA 114, C.A.D. 741 (1960); John S. James a/c The
Consolidated Packaging Corp. v. United States, 48 CCPA
75, C.A.D. 768 (1961); United States v. Gulf Oil
Corporation et al., 47 CCPA 32, C.A.D. 725 (1959).
Therefore the language of the HTSUSA must be examined in order to
determine the proper classification of the subject merchandise.
As the petitioner states in his submissions, there are several
new terms added in the HTSUSA for provisions for agglomerated
cork, which include "blocks," "plates," "strip," and "cylinders."
Thus the language of the HTSUS concerning cork is significantly
different from that of the TSUS. Under the HTSUSA cylinders are
included in subheading 4504.10, whereas subheading 4504.10.10 is
limited to two specific forms of agglomerated cork and rubber,
i.e., "vulcanized sheets and slabs...." No reference is made to
cylinders. Therefore, we see no clear intent that cylinders be
classified under subheading 4504.10.10.
The third argument presented by the petitioner is that the
provision for "vulcanized sheets and slabs," subheading
4504.10.10, is not so limited to prevent extension to the subject
cork/rubber cylinders. The Random House Dictionary of the
English Language, the Unabridged Edition (1983)
at page 360 defines the term cylinder as "2. any cylinderlike
object or part, whether solid or hollow." At page 1338 this
dictionary defines the term slab as "1. a broad, flat, somewhat
thick piece of stone, wood, or other solid material." Webster's
Third New International Dictionary, Unabridged (1986) at page
2136 defines the term slab as " 1: a comparatively thick plate or
slice of something (as of metal, stone, wood, or food).
Cylinders are not flat, nor could they be considered a plate or
slice of something. Cylinders do not meet the definition of
slabs. In addition, the National Import Specialist who
classifies cork and cork articles has informed us that the
commercial meaning of slabs would not include cylinders.
Therefore the subject merchandise does not meet the terms of
subheading 4504.10.10. Although the petitioner states that
classification should be under subheading 4504.10.10 since it is
more specific than 4504.10.50, in application of GRI 3(a), this
contention is without merit. Because it has been determined that
the subject merchandise is not classifiable as vulcanized sheets
and slabs in application of GRI 1, it is only classifiable under
one subheading: 4504.10.50. Consequently, GRI 3 is not
applicable.
The fourth argument made by the petitioner is that the
imported cylinders are unfinished sheets and slabs in application
of GRI 2(a). The importer states that after importation the
cylinders are sliced into sheets. In their condition as
imported, the cylinders could be sliced or processed into any
number of articles or shapes. Clearly, the cylinders cannot be
considered unfinished sheets or slabs in application of GRI 2(a)
since they do not have the essential character of such articles
at the time of importation.
Based on the foregoing, the subject cylinders are not
classifiable under subheading 4504.10.10, HTSUSA. Instead, they
are classifiable under subheading 4504.10.50, HTSUSA.
HOLDING:
The merchandise at issue is classified under subheading
4504.10.5000, HTSUSA, which provides for agglomerated cork (with
or without a binding substance) and articles of agglomerated
cork: blocks, plates, sheets and strip; tiles of any shape; solid
cylinders, including disks: other. The rate of duty is 18
percent ad valorem.
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, this decision should be mailed by our office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to 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, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division