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HQ 958589




FEBRUARY 14, 1996

CLA-2 RR:TC:MM 958589 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7226.91.25, 7228.30.60

Port Director of Customs
1 East Bay Street
Savannah, GA 31401

RE: PRD 1703-95-100104; Chipper Knife Steel, Flat-Rolled Products of Other Alloy Steel, Heading 7226, Chapter 72, Note 1(k), Bars and Rods of Other Alloy Steel, Other, Not Further Worked Than Hot-Rolled, of Tool Steel, Subheading 7228.30.60; Chapter 72,
Additional U.S. Note 1(e)(ii); Customs Laboratory Report, Customs Directive 099 3820-002, HQ 950929

Dear Port Director:

This is our decision on Protest 1703-95-100104, filed against your classification of certain alloy steel made in Germany, described as chipper knife steel. The entries under protest were liquidated on May 26, June 2, 9, and 16, and on July 21, 1995. This protest was timely filed on August 14, 1995.

FACTS:

The steel in issue is invoiced as alloy tool steel, chipper knife steel. This merchandise is further described as being hot rolled, annealed and sandblasted, with saw-cut ends. Dimensions on the submitted invoices range from 57.91 mm x 9.45 mm x 4267 mm to 193.3 mm x 17.28 mm x 4267 mm. The steel was entered under a duty-free provision in heading 7228, Harmonized Tariff Schedule of the United States (HTSUS), for other bars and rods of tool steel, chipper knife steel. Because mill certificates were not available for the merchandise, Customs officers requested and received a sample. The Savannah Customs laboratory analyzed the sample and indicated it was tool steel, but not chipper knife steel, as those terms are defined in applicable U.S. Notes to Chapter 72. The entries were then liquidated under the appropriate provision in heading 7228 for other bars and rods of tool steel.

Counsel for protestant has produced reports from independent laboratories purporting to verify that the merchandise is, in fact, chipper knife steel. Further, - 2 -
counsel contends that Customs placed undue reliance on one sample from one shipment as being representative of the steel contained in nine shipments.

The provisions under consideration are as follows:

7226 Flat-rolled products of other alloy steel, of a width of less than
600 mm:

Other:

7226.91 Not further worked than hot-rolled:
Of tool steel (other than high-speed steel):

7226.91.05 Of chipper knife steel...Free

Other:

7226.91.25
Of a width of less than 300 mm

...10.4 (now 9.3) percent ad valorem

7228 Other bars and rods of other alloy steel; angles, shapes and sections, of other alloy steel; hollow drill bars and rods , of alloy or non-alloy steel:

7228.30 Other bars and rods, not further worked than hot- rolled, hot-drawn or extruded:
Of tool steel (other than high-speed steel):

7228.30.40
Of chipper-knife steel, not cold-
formed...Free

7228.30.60
Other...9.5 (now 8.5) percent
ad valorem
ISSUE:

Whether the merchandise is chipper knife steel for tariff purposes; whether there is a presumption of correctness accorded Customs laboratory reports.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined 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.

Tool steel is defined in Additional U.S. Note 1(e), HTSUS, as alloy steel which contains combinations of elements in the quantity by weight respectively indicated. Chipper knife steel is defined in Additional U.S. Note 1(f), HTSUS, as alloy tool steels which contain, in addition to iron, each of certain elements, by weight, in the amounts specified. Generally, mill certificates will specify the alloying elements, if any, the steel may contain. No such certificates were submitted with the entry summary. The submitted sample was found by the Customs laboratory in Savannah to contain the requisite percent of carbon and chromium, by weight, respectively, specified in Note 1(e)(ii) for tool steel. However, the sample did not contain the requisite carbon and molybdenum content, by weight, specified in Note 1(f)(i) and (v) for chipper knife steel. See Savannah Laboratory Report 4-94-20853-001, dated September 15, 1994.

Regarding the laboratory analyses provided by protestant's counsel that supposedly contradict the Savannah Customs laboratory report, it is well settled that the methods of weighing, measuring, and testing merchandise used by Customs officers are presumed to be correct. Consolidated Cork et al. v. United States, 54 Cust. Ct. 83, C.D. 2512 (1965), HQ 950929, dated March 31, 1992, and related cases. To insure uniformity in the classification of imported merchandise, Customs laboratory reports cannot be disregarded for any reason. Customs Directive 099 3820-002, dated May 4, 1992. In this case, each of the laboratory reports submitted by protestant's counsel specify the chemical analyses by percentages, not necessarily by weight, as required by the cited legal notes. Moreover, each of the laboratory analyses differs from the others, and the testing methodology utilized in each analysis is not described. For this reason, the Savannah Customs laboratory report is deemed dispositive in this matter.

For tariff purposes, the term Flat-rolled products is defined, in part, to include straight lengths, which if of a thickness less than 4.75 mm are of a width measuring at least 10 times the thickness or if of a thickness of 4.75 mm or more are of a width which exceeds 150 mm and measures at least twice the thickness. Chapter 72, Note 1(k), HTSUS. There is an indication that because of dimensions, some of the merchandise in this protest may, in fact, be flat-rolled for tariff purposes.

HOLDING:

Under GRI 1, the steel under protest found to be within the term Flat-rolled products, as defined, is provided for in heading 7226. It is classifiable in subheading 7226.91.25, HTSUS. The protest should be ALLOWED as to this merchandise. Under the authority of GRI 1, the remaining steel in provided for in heading 7228. It is classifiable in subheading 7228.30.60, HTSUS. The protest should be DENIED as to this merchandise.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should 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 take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division

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