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HQ W968037




September 6, 2006

CLA-2 RR:CTF:TCM 968037 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8481.80.5090

Port Director
U.S. Customs and Border Protection
605 W. 4th Ave.
Suite 203
Anchorage, AK 99501

RE: Application for Further Review of Protest No. 3195-05-100451

Dear Port Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest 3195-05-100451 that you forwarded to the Office of Regulations and Rulings (“ORR”) pursuant to 19 C.F.R. §174.26, on or about January 6, 2006. We have completed our review of this protest and are returning the protest and appropriate documents forwarded for review to you along with directions for disposition of the protest, which are set forth below.

FACTS:

Protest Number 3195-05-100451 was timely filed by Dielectrics Inc. (“Dielectrics”) on November 10, 2005. The decision protested is the classification and rate and amount of duties chargeable on one entry of plastic valves made through the Anchorage, Alaska on July 21, 2005.

The valves are made in Taiwan and are hand-operated. According to Dielectrics, they are made of polyurethane and delrin resin. After importation, the valves are assembled onto a bladder that is incorporated in an athletic shoe or sneaker. It is our understanding that the bladder in the shoe self inflates after the wearer takes 5-10 steps. The valve automatically controls the pressure of the bladder in the shoe.

Based on information at http://www.rbk.com/us/pump2.0/, it is our understanding that the valve maintains pressure in the shoe at 5 psi. Pressing the valve releases the air from the shoe. See http://www.rbk.com/us/pump2.0/. Dielectrics provided a photocopy of a photograph showing the valve after incorporation into a running shoe that we believe is the Reebok Pump Wrapshear. This model does not have shoelaces, as inflation of the bladder provides the wearer with a secure “custom” fit.

On the entry at issue, Dielectrics classified the valves at issue in subheading 6406.99.3060, HTSUSA, which provides for: “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof: Other: Of other materials: Of rubber or plastics, Other.” At the time of entry, merchandise classified in subheading 6406.99.3060, HTSUSA, was subject to a column-one (general) rate of duty of 5.3% ad valorem.

On September 12, 2005, CBP rate reduced the entry prior to liquidation, classifying the valves at issue in subheading 8481.80.5090, HTSUSA, which provides for: “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Other appliances: Hand operated: Of other materials, Other.” At the time of entry, merchandise classified in subheading 8481.80.5090, HTSUSA, was subject to a column-one (general) rate of 3% ad valorem. The Notice of Action used to notify Dielectrics of the reclassification and rate reduction states that: “you will receive a refund.” The entry at issue liquidated on October 7, 2005.

Although CBP’s reclassification resulted in a rate reduction, Dielectrics nevertheless protested CBP’s decision. Further review of Protest Number 3195-05-100451 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.

The legal argument set forth in Section II, Block 7 of Protest Number 3195-05-100451 is centered around the following statement: “It is our opinion that heading 8481 is a ‘use provision’, meaning that the valves that fall within this heading are limited to those which are used on or in pipes, tanks, vats or the like. The subject valves are not used for these purposes. They are used as component to athletic footwear.”

ISSUE:

What is the classification of the plastic valves at issue?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If 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 GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4-digit headings and the 6-digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

A product's classification is determined by first looking to the headings and section or chapter notes. See Orlando Food Corp. v. United States, 140 F.3d 1437 (Fed. Cir. 1998). In the case at hand, the two headings at issue are: Heading 6406, HTSUSA, which provides for: “Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof” and Heading 8481, HTSUSA, which provides for: “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof.”

The EN to heading 6406, in pertinent part, state that the heading covers:

The various component parts of footwear; these parts may be of any materials except asbestos.
Parts of footwear may vary in shape according to the types or styles of footwear for which they are intended. They include : Parts of uppers (e.g., vamps, toecaps, quarters, legs, linings and clog straps), including pieces of leather for making footwear cut to the approximate shape of uppers. Stiffeners. These may be inserted between the quarters and lining, or between the toecap and lining, to give firmness and solidity at these parts of the footwear. Inner, middle and outer soles, including half soles or patins; also in-soles for glueing on the surface of the inner soles. Arch supports or shanks and shank pieces (generally of wood, leather, fibreboard or plastics) for incorporation in the sole to form the curved arch of the footwear. Various types of heels made of wood, rubber, etc., including glue-on, nail-on and screw-on types; parts of heels (e.g., top pieces). Studs, spikes, etc., for sports footwear. Assemblies of parts (e.g., uppers, whether or not affixed to an inner sole) not yet constituting nor having the essential character of footwear as described in headings 64.01 to 64.05.

Meanwhile, the EN to heading 8481, in relevant part, state that:

This heading covers taps, cocks, valves and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge, etc.), of fluids (liquid, viscous or gaseous), or, in certain cases, of solids (e.g., sand). The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or a gas.

The appliances regulate the flow by opening or closing an aperture (e.g., gate, disc, ball, plug, needle or diaphragm). They may be operated by hand (by means of a key, wheel, press button, etc.), or by a motor, solenoid, clock movement, etc., or by an automatic device such as a spring, counterweight, float lever, thermostatic element or pressure capsule.

In general, taps, valves, etc., are of base metal or plastics, but those of other materials (other than unhardened vulcanised rubber, ceramics or glass) are also covered by the heading.

Taps, cocks, valves, etc., remain in this heading even if specialized for use on a particular machine or apparatus, or on a vehicle or aircraft.

The heading includes inter alia :

(1) Pressure-reducing valves for reducing the pressure of gases and maintaining that reduced pressure at a fairly constant level by means of a plug or stopper which is generally controlled by a pressure device (diaphragm, bellows, capsule, etc.) damped by an adjustable tension spring. These appliances directly regulate the pressure of gases passing through them; they are mounted, for example, on compressed gas cylinders, on pressure containers, or on feed pipe systems of the appliances which they serve. The heading also includes pressure-reducing valves (sometimes called pressure regulators, pressure reducers or pressure regulator-reducers), also mounted at the outlets of pressure containers, of boilers, on connecting feed pipe systems or near the appliances which they serve, to perform the same function on compressed air, steam, water, hydrocarbons or other fluids.

When classifying merchandise under the HTSUSA, terms are to be construed according to their common and commercial meanings which are presumed to be the same. See Faus Group, Inc. v. United States, 358 F. Supp. 2d 1244 (Ct. Int’l Trade, 2004). An eo nomine provision is one which describes merchandise by a specific name, usually one well known in the trade, which includes all forms of the article as if each were provided for by name in the tariff provisions. See Wregg Imports v. United States, 10 C.I.T. 679, 681 (Ct. Int'l Trade, 1986).

Heading 8481, HTSUSA, is an eo nomine provision. It provides for small group of articles by their specific names, including “valves.” The heading covers all forms of valves as if each form were provided for by name in the tariff provision. There is no indication that Congress intended to limit this provision to certain forms of valves or exclude valves used in athletic footwear from classification in this heading. A review of the EN to heading 8481 further evidences that an extremely wide array of valves, from the simple to extremely complex, are captured within the scope of the heading. See EN to heading 8481.

We disagree with your assertion that heading 8481 is a “use provision” that only covers valves “limited to those which are used on or in pipes, tanks, vats or the like.” As stated above, the heading is an eo nomine provision. Nevertheless, we do regard the bladder to which the valves will be attached to be a tank. As a tank, the bladder fills and holds a substance, air. The valve controls the pressure of the bladder and can be used to release the air from the shoe. As the valves at issue regulate the flow of air out of the bladder, it is our view that they are precisely described by the terms of heading 8481, and fall squarely within the scope of the heading as evidenced by the ENs.

Consequently, the valves at issue are classified in heading 8481, HTSUSA, pursuant to GRI 1. As a result, the valves cannot be classified in heading 6406, HTSUSA, as parts of footwear, pursuant Additional U.S. Rule of Interpretation Note 1(c), which states: “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” Additionally, Dielectrics has not established that the valves at issue are solely or principally used as parts of footwear.

The valves are specifically provided for by subheading 8481.80.5090, HTSUSA, which provides for: “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Other appliances: Hand operated: Of other materials, Other.”

HOLDING:

By application of GRI 1 and Additional U.S. Rule Interpretation Note 1(c), the valves at issue are classified in heading 8481, HTSUSA. They are specifically provided for in subheading 8481.80.5090, HTSUSA, which provides for: “Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Other appliances: Hand operated: Of other materials, Other.”

The applicable column one (general) rate of duty on July 21, 2005, the date of entry, was 3% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,


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