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HQ 955333




June 21, 1994

CLA-2 CO:R:C:T 955333 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4504.10.5000

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

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

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