CLA-2 RR:CR:TE 958392 jb
Area Director
U.S. Customs Service
110 S. Fourth Street
Minneapolis, Minnesota 55401
RE: Decision on Application for Further Review of Protest No.
3501-95-100258; classification of cork rings
Dear Sir:
This is a decision on application for further review of a
protest timely filed by Neville Peterson & Williams, on behalf of
C & D Trading, Inc., on July 17, 1995, against your decision
regarding the classification of cork rings at the subheading
level of headings 4503 and 4504, Harmonized Tariff Schedule of
the United States (HTSUS). The entry at issue was liquidated on
April 28, 1995. Samples were submitted to this office for
examination. .
FACTS:
Although the subject merchandise, as reflected on all of the
invoice documents, is referred to as "Natural Cork Rings- FLOR
Plus", made of either natural cork or agglomerated cork, the
Protestant claims that this merchandise is more accurately
described as cork "disks". This merchandise, which was the
subject of New York Ruling Letter (NY) 804658, dated December 22,
1994, was classified by Customs in subheading 4503.90.6000,
HTSUSA, which provides for, other articles of natural cork, and
subheading 4504.90.4000, HTSUSA, which provided for other
articles of agglomerated cork (this merchandise is presently
classified in subheading 4504.90.0000, HTSUSA). The Protestant
disputes the classification of this merchandise as "other
articles" of cork or agglomerated cork on the grounds that the
subject merchandise is provided for under the eo nomine
provisions for disks, wafers and washers of natural cork, or
corks, stoppers, disks, wafers and washers of agglomerated cork
(subheadings 4503.90.2000, HTSUSA, and 4504.10.4700, HTSUSA,
respectively).
It is our understanding that the descriptions noted in the
New York ruling which described the merchandise as "cork disks",
were a reference to Protestant's own characterization of the
subject merchandise.
The merchandise is described as small round articles of
natural cork and of agglomerated cork ranging in size from 1/8
inch to 1 inch in thickness and from 1/4 inch to 1-1/2 inches in
diameter, with or without a hole in the center. Of the six
samples that were submitted to this office for examination, four
measured 1/4 inch in thickness and two measured « inch in
thickness; all samples measured approximately 1-1/2 inches in
diameter and all but one had a hole in the center. The products
have been stated to have various industrial uses, such as for
spacers and decorations in the hobby industry and for making
handles on ski poles, hiking staffs, and fishing rods.
ISSUE:
What is the proper classification for the merchandise at
issue?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI). GRI 1 provides
that classification shall be determined according to the terms of
the headings and any relative section or chapter notes.
Merchandise that cannot be classified in accordance with GRI 1 is
to be classified in accordance with subsequent GRIs.
Chapter 45, HTSUS, provides for cork and articles of cork.
The pertinent headings in this chapter are heading 4503, HTSUS,
which provides for articles of natural cork, and heading 4504,
HTSUS, which provides for agglomerated cork and articles of
agglomerated cork. The Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN) to heading 4503,
state that this heading covers, inter alia:
(2) Discs, washers and wafers of natural cork, for lining
crown corks and other closures for bottles, jars, etc.;
cork linings or shells for the interior of bottle
necks.
The EN to heading 4504, HTSUS, states:
* * *
Agglomerated cork is used to make much the same range of
products as those referred to under heading 45.03 but,
whereas it is rarely used for making stoppers, it is used
more often than natural cork for crown cork discs.
* * *
Fundamental to the issue of the classification of this
merchandise is the definition of the
term "disk." As neither the terms of the tariff nor the EN
provide us with a working definition for "disk", we look to other
sources for guidance. One of these sources is the Summaries of
Trade and Tariff Information for the previous Tariff Schedule of
the United States (TSUS). Although we realize that the
information contained therein is not dispositive of the
classification of this merchandise, as the present subheadings
were derived from the TSUS, we find that reference very
informative. Schedule 2, Volume 2, page 133, TSUS, defines disk
as:
Disks, wafers, and washers are thin pieces of cork having a
diameter much greater than their thickness;...These products
are used mainly to line and seal the caps or tops of many
different containers and dispensers of liquids and
semisolids, including fruit jars, soft-drink bottles,
toothpaste tubes, medicine and perfume bottles, and similar
containers for foods, drugs, cosmetics, and chemicals. A
large share of the cork disks consumed are for lining and
sealing crown bottle caps. Such disks are made of
composition cork and ordinarily have a diameter of 1.03 to
1.07 inches and a thickness of about one-twelfth inch.
The Summaries of Trade and Tariff Information defined "cork
articles" not specifically provided for in the TSUS as:
...Included also are various cork articles which are
components of the other articles, such as...handles, grips,
sleeves, tubes, gaskets, rings (excluding washers), and
numerous other articles for finished products, such as
sporting goods, fishing gear, clothing, mechanical and
scientific equipment, household utensils, and novelties.
Another useful source is a common dictionary definition of
"disk". The Webster's Ninth New Collegiate Dictionary, 1991, at
364, states that a disk is "a thin circular object".
It would seem apparent from both the terms of the former
TSUS and the dictionary definition of "disk", that a requisite
characteristic of a "disk" is that it be "thin". Although we
concede that the use of the word "thin" is ambiguous at best, we
note the inherent intent in the former TSUS to restrict the
thickness of the "disk" in order for it to effectively be put to
certain uses. That is to say, there is a notable distinction
that was drawn in the former TSUS between "disks, wafers and
washers", defined as thin pieces of cork used mainly to line and
seal the caps or tops of many different containers, and articles
or cork which were not restricted in their thickness and which
could be used for a variety of purposes. The latter were cited
as components of varied articles such as for example sporting
goods and novelties.
In discussing the meaning of the term "disk", the National
Import Specialist (NIS) for this commodity states that today the
commercial reality of the common meaning of the term disk has not
changed since the TSUS. Specifically, any reference to a "disk"
is understood to mean a thin piece of cork which is used as a
sealant, and is to be distinguished from other articles of cork
which are neither restricted in their thickness nor in their use.
We would agree with the NIS for this commodity that the common
meaning for the word "disk" has carried over from the TSUS to the
HTSUS to refer to a thin functional cork component which in most
cases acts as a sealant for bottles and jars, and is to be
distinguished from other cork articles which are not restricted
in their thickness and can be used for a variety of purposes,
decorative or otherwise.
In the case of the subject merchandise we have several "cork
rings" which, although "disk like" in their shape, do not have
the requisite "thinness" usually associated with "disks" which
are commonly regarded as functioning as sealants. We also note
that this merchandise is intended mainly for decorative purposes
and not for any functional uses, as for example the disks which
act as sealants (as contemplated by the tariff).
As such, we concur with the position in NY 804658, which
accurately distinguished the subject merchandise from disks and
correctly classified the merchandise as "other" articles of cork
and agglomerated cork.
HOLDING:
At the time of the protest, the subject merchandise was
correctly classified as other articles of cork in subheading
4503.90.6000, HTSUSA, at a rate of duty of 18 percent ad valorem,
and other articles of agglomerated cork, in subheading
4504.90.4000, HTSUSA, at a rate of duty of 18 percent ad valorem.
Presently, the proper subheadings for this merchandise are
as follows:
1. The cork rings made of natural cork are classified in
subheading 4503.90.6000, HTSUSA, which provides for
articles of natural cork: other: other, at a column 1
general rate of duty of 14.8 percent ad valorem; and
2. The cork rings made of agglomerated cork are classified
in subheading
4504.90.0000, HTSUSA, which provides for agglomerated
cork (with or without a binding substance) and articles
of agglomerated cork: other, at a
column 1 general rate of duty
"Free".
The protest should be denied in full and a copy of this
decision should be appended to the CF 19, Notice of Action, to
satisfy the notice requirement of section 174.30(a) Customs
Regulations.
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 your 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, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division