CLA-2 RR:CTF:TCM 967908 JAS
Michael E. Roll, Esq.
Pisani & Roll
1875 Century Part East, Suite 600
Los Angeles, CA 90067
RE: Aluminum Castings; NY L83113 Affirmed
Dear Mr. Roll:
In your letter, dated September 15, 2005, on behalf of Tyco Electronics Corporation, you request reconsideration of NY L83113, which the Director, National Commodity Specialist Division, U.S. Customs and Border Protection (CBP), New York, issued to you on March 16, 2005.
In NY L83113 certain aluminum castings from Taiwan used in making shell assemblies or housings for electrical connectors for the aerospace industry were found to be classifiable as other parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537, in subheading 8538.90.8080, Harmonized Tariff Schedule of the United States (HTSUSA). You maintain the castings are classifiable in subheading 7616.99.50, HTSUS, as other articles of aluminum. Samples of the imported casting, the casting processed in the United States after importation, and the complete or finished electrical connector housing were provided. You presented additional factual and legal arguments during a teleconference on December 29, 2005, with members of my staff, which you confirmed by facsimile transmittal, dated January 17, 2006.
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FACTS:
The merchandise is an aluminum casting, designated number 118-01-052-02, which is further machined by sizing two mounting holes and the flashing removed either manually or by machine. This is the condition of the merchandise as imported. The casting is further processed after importation by removing an aluminum oxide film formed during casting, applying a layer of nickel, plating with cadmium which provides an electrically conductive surface, then coating with chromate to protect the cadmium from corrosion. The plating and coating are processes required to meet performance requirements such as electrical conductivity, vibration and mechanical shock exposure as well as exposure to temperature and humidity. No further machining operations are performed. At this point the identifying number is changed to 118-01-052-07. The casting, processed as indicated, is then shipped to Mexico for assembly with other components into a finished housing for an electrical connector and given the identifying part number MTC100-JH1-P32.
The HTSUS provisions under consideration are as follows:
Other articles of aluminum:
Other:
Other:
Other
* * * *
Parts suitable for use solely or principally with the apparatus of
heading 8535, 8536 or 8537:
Other:
Other:
8538.90.80 Other
ISSUE:
Whether the aluminum casting, number 118-01-052-02, upon importation, qualifies as a blank under GRI 2(a) and, therefore, as an incomplete or unfinished part of an electrical connector of heading 8535 or 8536.
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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. GRI 2(a) states in part that
any reference in a heading to an article includes that article incomplete or unfinished provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs and Border Protection (or CBP, as appropriate) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The decision in NY L83113 was based on the finding “Part number 118-01-052-02, however, as imported has the character of a part of an electrical connector. It is already advanced to the point where it is recognizable and dedicated for use as a [p]art…” In respect of incomplete or unfinished articles, after discussing the concept of essential character at (I) the GRI 2(a) ENs, at (II), indicate “[t]he provisions of [Rule 2(a)] also apply to blanks unless these are specified in a particular heading. The term “blank” means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part (original bolded, underscoring added). This EN instructs that irrespective of the degree of processing
a good has undergone, its specific size and shape and dedication to use can dictate whether it has assumed the character of the article or part it will become. Therefore, it is CBP’s position that articles qualifying as “blanks” per se are said to possess the essential character of the complete or finished good. This principle is reflected in
NY L83113.
In support of the heading 7616 classification you cite relevant ENs which state that heading 7616 covers all articles of aluminum except those covered more specifically in the HTSUS. While you concede the castings have the approximate size, shape or outline of the connector part they will become, you argue that they lack important performance requirements such as electrical conductivity which you maintain imparts the essential character to a part provided for in heading 8538. In addition, the cost of the plated aluminum casting is approximately 85% higher than the unplated casting.
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You cite several rulings in which CBP held that articles imported incomplete or unfinished lacked the essential character of the complete or finished article because they required substantial further processing after importation. You cite numerous additional rulings in which you indicate CBP classified articles as if complete or finished because they qualified as “blanks,” without any reference to whether they had the essential character of the complete or finished article. Other rulings affirmatively stated that the articles had the essential character of the complete or finished article because they had the approximate size or shape of the complete or finished article or were dedicated for use as the finished article. You maintain, however, that these rulings represent an incorrect interpretation of GRI 2(a). You state that the GRI 2(a) EN does not state that blanks have the essential character of the complete good; rather, the EN only states that blanks are subject to GRI 2(a). You contend that CBP’s position is based on an EN, which is instructive at best, but does not supersede the legal text of GRI 2(a). Thus, you opine that a proper reading of GRI 2(a) requires that a good having the approximate shape or outline of the complete or finished article must also have the essential character of the complete or finished good. You conclude that because upon importation casting number 118-01-052-02 does not have the electrically conductive finishes necessary to provide a maximum resistance value between connectors, it lacks the essential character of a connector housing otherwise provided for in heading 8538. The casting is therefore classifiable in heading 7616.
CBP disagrees with your interpretation of GRI 2(a). It is our opinion that the
GRI 2(a) EN discussion of “blanks,” at (II), provides an independent, objective criteria for determining whether an incomplete or unfinished good is to be classified as if complete or finished. If this were not the case, the “blanks” language would be unnecessary and superfluous as the classification of articles having the approximate shape or outline of the finished good would in all cases be governed by the principal of essential character.
Our failure to discuss in detail the numerous cases you cite does not mean they were not fully evaluated and considered. However, in view of the discussion above, we will only discuss the decisions which illustrate the legal principles which we believe control this case. See Apple Computer, Inc. v. United States, 749 F. Supp. 1142 (Ct. Int’l Trade, decided October 19, 1990). Among those is a case you cite, HQ 557992, dated January 23, 1996, concerns zirconium tubes imported cut-to-length but otherwise in bare configuration, for use as fuel rods for nuclear reactors. Because they required substantial post-importation fabrication, as well as the addition of a critical component, uranium fuel in pellet form, the tubes were found to lack the essential character of finished or complete fuel elements. As there is no discussion in HQ 557992 of whether the zirconium tubes qualified as “blanks,” we do not view this decision as instructive.
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CBP’s position on “blanks” is clearly demonstrated in HQ 084219, dated July 7,1989, another case you cite, concerning aluminum blanks or bare substrates for computer memory discs. Notwithstanding that the discs required further processing
after importation by cleaning, plating and polishing, into prepared unrecorded media of heading 8523, the ruling stated, in part, “[t]he disc blanks have the essential shape of
the finished articles, and they do not appear to have any practical use other than for completion into the intended memory discs. By virtue of their specific size and shape, these articles have assumed the character of the articles into which they will be completed.” HQ 084219 stated that GRI 2(a) would otherwise direct the classification of these unfinished recording discs in heading 8523, but for the fact they were not physically finished, i.e., prepared, as required by the 8523 heading text. Classification thus defaulted to heading 7616 according to the discs’ constituent material.
As noted earlier, you indicate on p. 5 of your September 15, 2005, submission, that the [imported aluminum] casting has the physical shape of the connector part which it will ultimately be used. In view of the discussion above, the lack of important performance requirements in the casting at importation is not deemed legally relevant. CBP’s position on the classification of articles qualifying as “blanks” has been both consistent and longstanding. See HQ 084219, supra, HQ 957094, dated January 30, 1995, and related cases. For these reasons, the aluminum casting, number
118-01-052-02, qualifies as a blank and possesses the essential character of a housing for electrical connectors.
HOLDING:
Under the authority of GRI 2(a), aluminum castings designated number
118-01-052-02, are provided for in heading 8538. They are classifiable in subheading 8538.90.8080, HTSUSA, as other parts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537.
EFFECT ON OTHER RULINGS:
NY L83113, dated March 16, 2005, is affirmed.
Sincerely,
Robert A. Altneu
Myles B. Harmon, Director
Commercial and Trade Facilitation Division