CLA-2 OT:RR:CTF:TCM H095037 JER
BJ Shannon, Esq.
Alston & Bird, LLP
950 F Street, NW
Washington, DC 20004-1404
RE: Request for Binding Ruling; Classification of Half-Cylinders
Dear Ms. Shannon:
This is in response to your letter dated January 6, 2010, on behalf of Sidel, Inc. (“Sidel”) to United States Customs and Border Protection (“CBP”), in which Sidel requested a binding ruling pertaining to the tariff classification of stainless steel and aluminum alloy half-cylinders under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your request has been forwarded to this office by the National Commodity Specialist Division for direct reply.
FACTS:
The subject merchandise are stainless steel and aluminum alloy half-cylinders, which will be used in the production of shell holders, mold body components or mold bodies. The three completed articles will be used in the blow molding process in the production of plastic beverage bottles. The stainless steel half-cylinders are produced from bricks of hot rolled stainless steel. The aluminum alloy half-cylinders consist of anodized aluminum. Both types are milled to a half-round shape then cut to a length of 300 millimeters (mm), and machined to a half-cylindrical shape with an outside diameter of 150 mm. Each half-cylinder is machined to include either six quarter-spherical notches, three along each vertical edge of the flat surface or vertical grooves along the edges. These notches or grooves facilitate the locking of two half-cylinders to form a complete cylinder. Each half-cylinder is machined to include a horizontal groove
across the convex side of the half-cylinder which facilitates connection of the completed article to the blow molding machine. Additional holes may be bored on the flat surface, or “face” of the half-cylinder into which pins or bushings will be placed during production. Other holes or grooves may be machined or bored into the face of the half-cylinders which are only used to position the half-cylinder during machine of grooves or notches.
After importation, the subject merchandise is further processed into three completed articles: shell holders, mold body components or mold bodies. The shell holders retain the length of the half-cylinders and are used in pairs to hold shells of bottle molds. The shell holders are ultimately designed to hold the mold shell insert in place. The mold body components are used in the molding of either the top of a bottle or the bottom of a bottle. The mold bodies are used in pairs with each body forming half the shape of a bottle.
ISSUE:
Whether the subject half-cylinders are classifiable as other articles of steel under heading 7326, HTSUS, or as other articles of aluminum under heading 7616, HTSUS, or as parts of molding machines under heading 8477, HTSUS, or as “blanks” used in the production of blow molds under heading 8480, 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 2 through 6 may then be applied in order.
GRI 2(a) provides that: [a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
The 2009 HTSUS provisions under consideration are as follows:
7326 Other articles of iron or steel:
7326.90 Other:
7326.90.85 Other….
* * *
7616 Other articles of aluminum:
Other:
7616.99 Other:
7616.99.50 Other….
* * *
8477 Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or includes elsewhere in this chapter, parts thereof:
* * *
8477.30.00 Blow-molding machines
* * *
8480 Molding boxes for metal foundry; mold bases; bolding patterns; molds for metal (other than ingot molds), metal carbides, glass, mineral materials, rubber or plastics:
Molds for rubber or plastics:
8480.79 Other types:
8480.79.90 Other
8480.79.9010 Blow molds
* * *
Section XVI, Note 2 provides in pertinent part as follows:
Subject to note 1 to this section, note 1 to chapter 84 and note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517.
* * *
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 nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN (II) to GRI 2(a), HTSUS, provides that:
(II) The provisions of this Rule [2(a)] apply to blanks unless these are specified in a particular heading. The term “blank” means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part.
Semi-manufactures not yet having the essential shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not regarded as “blanks.”
EN 84.80, HTSUS, provides in relevant part, that:
* * *
In general, the essential function of a mould is to retain the material in a predetermined shape while it sets; some moulds also exert a certain pressure on the material. But the heading excludes stamping dies of heading 82.07 since these shape the material solely by means of a powerful blow or compression (e.g., dies for stamping out sheet metal goods).
* * *
(G) MOULDS FOR RUBBER OR PLASTICS
This group includes :
(1) “ Bladder ” moulds for vulcanising tyres. These consist of two adjustable metal chill moulds, steam or electrically heated, enclosing a kind of air inflated ring shaped bag (the air bag) or hot water inflated bag (the water bag), which presses the tyre firmly against the mould surfaces.
(2) Moulds for moulding or vulcanising miscellaneous rubber articles.
(3) Moulds for making plastic articles, whether or not electrically or otherwise heated; they may operate by gravity, or by injection or compression.
* * *
You contend that the subject stainless steel half-cylinders and the subject aluminum alloy half-cylinders are classified as other articles of steel or aluminum not elsewhere specified or included under headings 7326 and 7616, HTSUS respectively. Heading(s) 7326 and 7616, HTSUS, are a residual provisions which provide for other articles of steel or aluminum, respectively, not elsewhere specified or included. The Court has held that basket or residual provisions “are intended as a broad catch all to encompass the classification of articles for which there is no more specifically applicable subheading. “EM Indus., v. United States, 22 CIT 156, 165, 999 F. Supp. 1473, 1490 (1998). In the instant case, molds are provided for eo nomine under heading 8480, HTSUS.
You state that in their condition as imported, the subject half-cylinders do not meet the criteria set forth in EN (II) to GRI 2(a) as “blanks” because, as you contend, these articles are not solely used to produce articles of one HTSUS heading. Rather, each half-cylinder is milled into a blow mold of heading 8480, HTSUS, or a mold shell of heading 8477, HTSUS.
The Classification of “Blanks” under GRI 2(a)
The Courts have considered the definition of a “blank” and have held that an article which had the general shape of the completed article and was intended solely for use as the completed article, met the definition of a “blank” within the meaning of EN (II) to GRI 2(a). Cummins Inc., v. United States, 29 C.I.T. 525; 377 F. Supp. 2d 1365 citing Cummins Engine Co. v. United States, 23 C.I.T. at 1023-24, 83 F. Supp. 2d at 1371. Likewise, CBP has previously considered whether an article is classified as a “blank” for purposes of GRI 2(a). In Headquarters Ruling Letter (“HQ”) 085579, dated April 26, 1990, CBP held that cold forgings for inner and outer rings of bearings were “blanks” for tariff purposes. In HQ 085579, we noted that the ENs to GRI 2(a) provide specific guidance on the application of GRI 2(a) to articles referred to as “blanks.” See also, Cummins Engine at 1023.
We note that EN (II) addresses two criteria for articles which are “blanks” for purposes of GRI 2(a): 1) the merchandise must have the approximate shape or outline of the finished article, and 2) its sole use must be for completion into the finished article. Accordingly, resolution of this matter rests on whether the subject half-cylinders meet the two-prong definition of a “blank” as set forth in Cummins Engine, HQ 085579 and the ENs to GRI 2(a) and whether the finished articles are classifiable under a single heading.
First, based on the description and photographs provided (in Attachments A through H, to your submission), the length, diameter, fundamental shape and general outline of the subject articles closely resemble that of the completed articles. For instance, the subject half-cylinders are uniformly cut to a length of 300 mm and machined to a half-cylindrical shape with an outside diameter of 150 mm. The completed articles, whether shell holders, mold body components or mold bodies, will have a similar height, length and diameter. Likewise, each “blank” is half-round in shape with horizontal grooves across the convex side to facilitate connection to a blow molding machine and are machined to include either six quarter-spherical notches or vertical grooves which facilitate the inter-locking of the half-cylinders to form a complete cylinder. The completed articles will possess similar physical features. Accordingly, it is our view that the physical distinctions between the completed articles and the half-cylinders (e.g., concave interior surface cavity, additional bolts, attachments, etc.) are much like saw blade blanks or key blanks wherein the article has the approximate shape of a saw blade or key but is lacking only in the grooves or teeth of the finished article which make it into a particular key or saw. See HQ 968137, dated May 30, 2006; HQ 733837, dated February 5, 1991 and HQ 734062, dated April 22, 1991 (Wherein CBP considered whether saw blade blanks or key blanks were substantially transformed when the grooves and/or teeth were machined out of the blank); see also, HQ 953079, dated July 8, 1993 (In which CBP classified
steel panel blanks used to be further processed into finished auto parts as “blanks”). Accordingly, we find that the subject merchandise has the approximate shape and general outline of the completed articles whether a shell holders, mold body components or mold body, and lacks only the cavity which makes it a mold or mold shell for a particular plastic bottle.
Second, in your submission, you confirm that the subject half-cylinders will be used to produce blow molds or variations thereof for the production of plastic beverage bottles. You state that the subject merchandise will ultimately be used to produce shell holders, mold body components or mold bodies. In either case, each article has the fundamental characteristics that are essential to the purpose and function required in blow molding. Further, the dimensions and physical features of the instant half-cylinders support the conclusion that the sole purpose of these articles is to produce blow molds and variations thereof. Similarly, the subject half-cylinders have no other known intended use nor does your submission suggest that they have the capacity to form any other machines, equipment or goods other than completed blow molds of heading 8480, HTSUS. As such, we find that the sole use of these articles is to further process them into blow molds of heading 8480, HTSUS.
The Classification of the “Finished Articles”
You argue that the subject merchandise does not meet the definition of a blank because the imported merchandise results in three different articles: shell holders, mold body components and mold bodies with their own distinct identities and distinct uses. However, we find that a finished shell holder, mold body component and mold body, are all prima facie classifiable under heading 8480, HTSUS, as blow molds. A mold for tariff classification purposes is an article which has the capacity to give final shape and form to the manufactured article and may range from a simple single cavity type to more complex multi-cavity types. EN 84.80 provides, in pertinent part, that: “[i]n general, the essential function of a mould is to retain the material in a predetermined shape while it sets…” Hence, upon completion, the instant merchandise does not result in articles of three HTSUS headings but instead are further processed into variations of blow molds of heading 8480, HTSUS.
The shell holder for instance, has the essential character and function of a blow mold of heading 8480, HTSUS. As the submission supports, the shell holder consists of a shell to hold an insert of a bottle mold. Once the insert is added to the shell holder, the completed article forms and functions as a blow mold. See Attachment D of the submission (which depicts a shell holder with an insert, having all of the essential features of a blow mold). In HQ 966364, dated July 15, 2003, CBP held that a “cast die” which was imported without sand core inserts was classified under heading 8480, HTSUS, by application of GRI 2(a) because it had the essential character of a completed cast die (i.e., a mold with an insert). In HQ 966364, we stated that “casting dies imported without sand core inserts” represent the aggregate of distinctive parts that establish the identity of the goods as molds of 8480.” The unfinished shell holder (molds) here are different. These articles with or without the shell insert have assumed the character and essential function of an article of heading 8480, HTSUS. They have the shape appearance and capacity to perform the essential function of a mold and represent the aggregate of distinctive features which establish the identity of the shell holder as a blow mold of heading 8480, HTSUS. We stated in HQ 966364 that the first rule of GRI 2(a) extends the scope of a heading which refers to a particular article to cover not only the completed article but also that article incomplete or unfinished, provided that, as presented, the good has the essential character of the complete or finished article. Moreover, in the Classification of Molds, supra note, 3 at 15-16, CBP stated that: “[i]n the case of an unfinished mold, providing the unfinished mold has the essential shape or outline of the finished mold, the unfinished mold would be classified as a mold.” Accordingly, if imported separately, the shell holders would be considered incomplete or unfinished articles (lacking only the shell insert) and would be classified as blow molds under heading 8480, HTSUS, by application of GRI 2(a).
Similarly, the mold body components are prima facie classified under 8480, HTSUS, as they provide the essential function of a mold and are described by the terms of the heading as well as the description set forth in EN 84.80. In your submission, you state that the mold body components facilitate the molding of either the top or bottom of a [plastic] bottle. See Attachment E of the submission (which depicts a blow mold for the top portion of a bottle). As your submission confirms, “the larger component [of the mold body component ] facilitates molding of the bottom of a bottle. The shorter component, or ‘shoulder’ facilitates molding of the top of a bottle.” Such are characteristics of a blow mold within the meaning of heading 8480, HTSUS. See HQ 954331, dated June 10, 1993; see also, NY I83311, dated June 26, 2002 (In which CBP classified articles as blow molds for plastic items under heading 8480, HTSUS).
Likewise, the mold bodies are also prima facie classified under 8480, HTSUS, as they provide the essential function of a mold and are described by the terms of heading as well as the description set forth in EN 84.80. According to your submission, the mold bodies are used in pairs, with each body in the pair forming half the shape of the bottle.” See Attachment F. As your submission supports, following the attachment of various clamps, bushes and pins, the mold bodies can be closed and the bottle may be blown. Such are characteristics of a blow mold of heading 8480, HTSUS.
Neither the Half-Cylinders or the Completed Articles are Classified as Parts
You also assert that subject half-cylinders are not parts of blow molds of heading 8480, HTSUS and that the shell holders (of which some of the subject half-cylinders will be processed into) are classifiable as parts of molding machines of heading 8477, HTSUS. As required by Note 2(a) to Section XVI, parts which are goods of any of the headings of Chapters 84 and 84 (expect for headings not relevant here) are in all cases to be classified in their own respective headings. See Nidec Corp. v. United States, 861 F. Supp. 136 (CIT 1994), aff’d. 68 F.3d 1333 (Fed. Cir. 1995). The Nidec court determined that if a good can be classified in its own heading in accordance with Section XVI Note 2(a), then classification as a part under Section XVI Note 2(b) is improper. As previously stated, we find that the shell holders are prima facie classifiable under heading 8480, HTSUS, as blow molds by application of GRI 2(a). See HQ 966364 (cited above). As a result, the finished articles for which the subject half-cylinders will be processed into are precluded from classification as parts of a machine of heading 8477, HTSUS, by operation of Note 2(a) to Section XVI.
Having established that each of the three “finished articles” for which the subject half-cylinders are used, are indeed classifiable as blow molds under heading 8480, HTSUS, it follows that a “blank” solely used for the completion of these articles having the general or approximate shape of the finished articles, are classified as “blanks” in accordance with GRI 2(a). Accordingly, we find that the subject half-cylinders are classified as “blanks” under heading 8480, HTSUS.
Lastly, you assert that the instant merchandise is similar to the steel roll shells in NY N04978, dated January 26, 2009; the raw ductile iron alloy castings in HQ H025103, dated February 6, 2009; the tubing in HQ 958724, dated March 21, 1996; the steel springs in NY N08057, dated October 29, 2009 and the stainless steel and aluminum baskets, trays and cases in HQ H036115, dated November 19, 2008, and therefore the subject merchandise should be classified either as a part of a machine or as an article of steel or aluminum in a basket provision. Arguendo, the rulings which you cite are relevant to the classification of the instant merchandise, we have determined that the instant articles are not parts. Additionally, since the subject half-cylinders are described by the terms of heading 8480 as blow molds by application of GRI 2(a), they cannot be classified in a less specific residual provision which provides for articles of aluminum or steel by application of GRI 3(a). See EM Indus v. United Sates at 165.
HOLDING:
By application of GRI 2(a) and pursuant to Note 2(a) to Section XVI, the subject half-cylinders are classified in heading 8480, HTSUS. Specifically, the half-cylinders are classified under subheading 8480.79.9010, HTSUSA, which provides for: “Molding boxes for metal foundry; mold bases; bolding patterns; molds for metal (other than ingot molds), metal carbides, glass, mineral materials, rubber or plastics: Molds for rubber or plastics: Other types: Other: Blow molds.” The 2009 column one, general rate of duty is 3.1% ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/. A copy of this ruling letter should be attached to entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch