CLA-2 RR:CR:GC 965768 JAS
Port Director of Customs
1 La Puntilla
San Juan, PR 00901
RE: Protest 4909-01-100021; Concrete Reinforcing Bars
Dear Port Director:
This is our decision on Protest 4909-01-100021, filed by a customs broker on behalf of Pollan Trade Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of concrete reinforcing bars. The entries were liquidated on May 11, 2001, and this protest timely filed on June 7, 2001.
FACTS:
The merchandise is deformed carbon steel bars for concrete reinforcement. Also referred to as concrete rebar, they are hot-rolled in bar mills from billets and used to reinforce concrete structures by providing tensile and compression strength to those sections subject to bending and other loads. Rebar is usually further processed by hot forming lugs or protrusions called deformations into their surface to inhibit longitudinal movement of the bars relative to the surrounding concrete. Concrete rebar is usually shipped cut-to-length or in long lengths to be recut as required for a specific application. The bars at issue here are imported in 20, 30 and 40-ft. lengths.
The merchandise was entered under a provision in heading 7214, HTSUS, as other bars and rods of nonalloy steel. Based on representative mill certificates which confirmed their copper content, the goods were reclassified in heading 7228, HTSUS, as other bars and rods of other alloy steel.
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The HTSUS provisions under consideration are as follows:
Other bars and rods of iron or nonalloy steel, not further worked
than forged, hot-rolled, hot-drawn or hot-extruded…:
Concrete reinforcing bars
* * * *
7228 Other bars and rods of other alloy steel…:
7228.30 Other bars and rods, not further worked than hot-rolled, hot- drawn or extruded:
7228.30.80 Other
The protestant makes the following arguments in support of the heading 7214 classification: (1) the foreign supplier produces only carbon steel billets and reinforcing bars, products that traditionally are not alloyed. Alloy steel bars, on the other hand, would be required for machine-making, automotive, and other more sophisticated manufacturing applications which are not represented by the supplier’s customer base; (2) scrap with a high copper content may have been introduced into the furnace melt from which the rebar came, but the copper was an unintended residual element, and not an alloy element added intentionally, and (3) while the European Community generally regards bars with a copper content exceeding 0.4 percent (by weight) as alloyed, products known as deformed reinforcing bars intended only for use in buildings may have up to a 0.8 percent copper content.
ISSUE:
Whether the concrete rebar at issue is considered alloy steel for tariff purposes.
LAW AND ANALYSIS:
Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. Chapter 72, Note 1(d), HTSUS, in part, defines Steel as a ferrous material which is usefully malleable and which contains by weight 2 percent or less of carbon. Chapter 72, Note 1(f), HTSUS, in part, defines Other alloy steel as steels not within the definition of stainless steel and containing by weight 0.4 percent or more of copper.
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Alloying elements are added to the steel intentionally to give it a particular property while residual elements are said to be those found in scrap material added to the melt. Some of these residuals are possible to eliminate due to their affinity for oxygen, but others, like copper, which have a lower affinity for oxygen are extremely difficult, if not impossible to eliminate.
The protestant’s argument is that if an alloying element is added to the product unintentionally, and the product is commonly ordered, bought and sold and, in this case, priced as non-alloyed, it should be considered as non-alloy steel for tariff purposes. It is acknowledged that the correct meaning of a tariff term is generally resolved by ascertaining its common and commercial meaning, which are presumed to be the same. Toward this end, dictionaries and lexicons, as well as scientific and other authoritative sources are often consulted. However, such is not the case where, as here, the term in question is defined either in the HTSUS or its legislative history. See THK America v. United States 17 C.I.T. 1169 (1993). Due to the fact that their copper content brings the concrete reinforcing bars at issue within the legal definition for other alloy steel, in Chapter 72, Note 1(f), HTSUS, their status, for tariff purposes, is thereby established. The bars must be classified accordingly.
HOLDING:
Under the authority of GRI 1 the concrete reinforcing bars are provided for in heading 7228. They are classifiable in subheading 7228.30.80, HTSUS.
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, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division