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HQ 966522




October 16, 2003

CLA-2 RR:CR:GC 966522 RSD

CATEGORY: CLASSIFICATION

TARIFF NO. 7216.50.00/9903.73.50

Port Director
Customs and Border Protection
1 East Bay Street
Savannah, Georgia 31401

RE: Protest 1703-03-100122; S-shaped steel profiles

Dear Port Director:

This is our decision on Protest 1703-03-100122, filed by German Special Profiles on May 5, 2002, against your decision in the classification of S-shaped steel profiles under Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise is known as S-shaped steel profiles, which were imported from Germany. The profile shape is also known as an upper-carriage bar and is designated as profile # 3286. It is not disputed that the S-shaped profile shapes are classified in subheading 7216.50.00, HTSUS. However, the protestant does not agree that the subject S-shaped steel profiles are less than 80 mm in height and are therefore covered by “Section 201 duties” imposed under subheading 9903.73.50, HTSUS.

ISSUE:

Whether the imported S-shaped steel profile shapes are subject to the Section 201 duties for steel products under subheading 9903.73.50, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

Angles, shapes and sections of iron or nonalloy steel:

7216.50.00 Other angles, shapes and sections, not further worked than hot-rolled, hot-drawn or extruded.

To facilitate positive adjustment to competition from imports of certain steel products (so-called Section 201 steel safeguard duties), Presidential Proclamation 7529 authorizes the assessment of certain additional duties under subheading 9903.73.50, HTSUS, on bars and rods that are classified in subheading 7216.50.00, HTSUS, imported from March 20, 2002, the effective date of the proclamation, through March 19, 2003.

As noted previously, it is not disputed that the S-shaped steel profiles are classified in subheading 7216.50.00, HTSUS, which provides for angles, shapes and sections of iron or nonalloy steel, other angles shapes and sections not further worked than hot-rolled hot-drawn or extruded. Footnote one to subheading 7216.50.00, HTSUS, refers to subheadings 9903.73.42 through 9903.73.52, HTSUS, to determine the applicable rate of duty for the product. The subheading indicates that bar rods and light shapes of steel (other than stainless or tool steel) (provided for in subheading 7216.50.00) would be subject to additional duties of 30 percent if entered during the period from March 20, 2002 through March 19, 2003, inclusive. Since the subject merchandise was entered on August 22, 2002, it would fall under subheading 9903.73.50, HTSUS. However, the superior text to subheadings 9903.73.42 to 9903.73.52, HTSUS, provides an exclusion from the additional duties for sections with any linear dimension of 80 mm or greater when measured through a solid portion of the cross section. Thus, the issue in this case is the dimension of the subject profiles.

Protestant argues that EN 72.16 indicates that the term “height” as applied to the steel profiles means the total height. According to the protestant, EN 72.16 provides guidance on how to measure other steel profiles. For example, EN 72.16 indicates that the height of U, I, or H sections shall be “the distance between the external surface of the two parallel planes.” In addition, EN 72.16 also indicates that the height of L sections is “the height of the largest external side,” and the height of T sections is the “total height of the section.” Protestant maintains that the same method of measurement should be applied to the S–shaped steel profiles involved in this case because the clear intent of the subheading as indicated in EN 72.16 is that the height of a S-shaped steel profile should be the distance between the parallel planes drawn along the top and bottom of the S shape.

Protestant acknowledges that on July 12, 2002, the Office of the United States Trade Representative (USTR) published a notice in the Federal Register, 67 FR 46211, which amended U.S. Note 11 to subchapter III of Chapter 99 of the HTSUS to alter the language of the superior text for subheadings 9903.73.42 through 9903.73.52, HTSUS to exclude profiles “with any linear dimension of 80 mm or greater when measured through a solid portion of the cross section.” Protestant maintains that because this change in language in the superior text constitutes an expansion of the scope of the merchandise subject to Section 201 duties, it should only be applied to merchandise that was entered on or after the date of publication of the notice of the change, i.e. on or after July 12, 2002.

The Customs Form (CF) 7501 for the entry in question indicates that the subject S-shaped steel profiles were entered into the United States on August 22, 2002. This means that the S-shaped steel profiles were imported after the publication of the July 12, 2002, Federal Register notice and that any changes that the notice made in classifying the steel profiles should apply to the subject importation. For subheadings 9903.73.42 through 9903.73.52, HTSUS, the July 12th Federal Register notice added the following language: “sections, with any linear dimension of 80 mm or greater when measured through a solid portion of the cross section.” This language in the July 12th 2002 Federal Register notice indicates how S-shaped steel profiles should be measured to determine if they should be excluded from the additional Section 201 duties on steel products because their height exceeds 80 mm. Under the method for measuring the S-shaped profiles indicated in the Federal Register notice, the subject merchandise would be measured as having a linear dimension less than 80 mm, and thus would be ineligible for the exclusion from the additional Section 201 duties for steel products.

The July 12 Federal Register notice indicates that the modifications and corrections of the notice are effective after the dates set forth in each item in the annex to the notice. The annex to the July 12 Federal Register notice indicates that the effective date with respect to the modification of the relevant language to the superior text to subheadings 9903.73.42 through 9903.73.52, HTSUS was on or after 12:01 a.m., EDT on July 12, 2002. Since the importation in question occurred after the July 12, 2002, the subject S-shaped steel profiles are subject to the Section 201 duties set forth in subheading 9903.73.50 HTSUS .
HOLDING:

In accordance with the method for measuring the linear dimensions for S-shape steel profiles set forth in the Federal Register Notice, of July 12, 2002, the subject S-shaped steel profiles do not exceed 80 mm. Therefore, the S-shaped steel profiles (#3286) are subject to the Section 201 additional duties for steel products of subheading 9903.73.50, HTSUS.

You are instructed to DENY the protest.

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.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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