CLA-2 CO:R:C:M 088357 JMH
Mr. C.K Murphy
Manager
Export and Import Services
Eveready Battery Company, Inc.
P.O. Box 450777
Westlake, Ohio 44145-2536
RE: Reconsideration of New York Ruling Letter 856239, dated
October 5, 1990; lithographed tinplate imported from Japan
for use in dry cell batteries; flat-rolled products of iron
or nonalloy steel; clad, plated or coated; electrolytically
coated or plated with base metal; lithography; prior
administrative decisions under TSUS are only instructive;
tariff rate increase after conversion from TSUS to HTSUSA
Dear Mr. Murphy:
Your request for the reconsideration of New York Ruling
Letter 856239 ("NY 856239") has been forwarded to this office for
a reply. NY 856239 concerned the classification of certain
lithographed tinplate from Japan.
FACTS:
The article in question is lithographed tinplate imported
from Japan. The tinplate is to be used in the manufacture of dry
cell batteries. It consists of flat-rolled steel which is cut to
shape, coated with tin, and then the lithograph design is painted
onto the tin. The design is painted with a substance that will
retain ink so that the design may be printed onto paper. The
lithographed tinplate will be imported in various widths.
NY 856239 classified the lithographed tinplate in two
provisions depending upon the tinplate's width. The first
classification is subheading 7210.90.60, Harmonized Tariff
Schedule of the United States Annotated ("HTSUSA"), as "Flat-
rolled products of iron or nonalloy steel, of a width of 600 mm
or more, clad, plated or coated...Other...Other...
Electrolytically coated or plated with base metal..." The second
-2-
classification is subheading 7212.50.00, HTSUSA, as "Flat-
rolled products of iron or nonalloy steel, of a width of less
than 600 mm, clad plated or coated...Otherwise plated or
coated..."
You believe that the tinplate is properly classified in
subheading 7326.90, HTSUSA, as "Other articles of iron or
steel..." This classification is premised on the fact that the
goods were classified in item 657.25, Tariff Schedules of the
United States ("TSUS"), and that the International Trade
Commission ("ITC") conversion study stated that subheading
7326.90 HTSUSA, is appropriate for articles that were classified
under item 657.25, TSUS. You state that the majority of items
that were classified under item 657.25 are now classified under
subheading 7326.90. Furthermore, you argue that the change to
the HTSUSA was to be "trade neutral" and tariff rate neutral.
ISSUE:
Whether the lithographed tinplate is properly classified in
subheadings 7210.90.60 and 7212.50.00 as "Flat-rolled products of
iron or nonalloy steel, of a width of 600 mm or more, clad,
plated or coated...Other...Other...Electrolytically coated or
plated with base metal..." and as "Flat-rolled products of iron
or nonalloy steel, of a width of less than 600 mm, clad plated or
coated...Otherwise plated or coated...", or whether they should
be classified in subheading 7326.90 as "Other articles of iron or
steel..."
LAW AND ANALYSIS:
You argue that the lithographed tinplates, once classified
in TSUS item 657.25, should be classified under what you believe
to be the corresponding HTSUSA provision, heading 7326. This is
incorrect for several reasons.
First, in the prior tariff, lithographed flat-rolled steel
was precluded from classification under the provisions for
plates, sheets and strip of steel in Schedule 6, Part 2, Subpart
B, TSUS. This exclusion was based on the fact that the operation
of lithographing or printing designs on steel went beyond the
permissible processing set forth in Schedule 6, Part 2, Headnote
1, TSUS. This classification principle has not been included in
the HTSUSA.
Secondly, this office is not bound by the fact that most
products formerly classified in item 657.25 may be classified
under heading 7326. The HTSUSA created headings which more
specifically describe certain goods. However, some goods will
exist that are never specifically described by any heading.
-3-
Such articles will remain classified in "basket" provisions such
as heading 7326. However, this is not the case for the
lithographed tinplate under consideration.
Thirdly, you argue that the conversion to the HTSUSA was
meant to be "trade neutral" and "rate neutral", and thus the
tariff rate change concerning the lithographed tinplate should
not have occurred. Trade and rate neutrality was the intention
of Congress to the extent that such neutrality was possible.
However, some anomalies have occurred since a new tariff which
includes new legal guidelines is being implemented. The
legislative history of the Omnibus Trade and Competitiveness Act
of 1988 states the following:
In light of the significant number and nature of
changes in nomenclature from the TSUS to the HTS,
decisions by the Customs Service and the courts
interpreting nomenclature under the TSUS are not to be
deemed dispositive in interpreting the HTS. House
Conference Report 100-576 to Pub. L. 100-418, p. 1582-
1583.
Prior decisions by the Customs Service and the courts are
instructive only when the tariff language remains unchanged and
there is no dissimilar interpretation by the text of the HTS.
The prior provision at issue, item 657.25, TSUS, described
"Articles of iron or steel, not coated or plated with precious
metal...Other articles...Other..." This provision is a change in
the tariff language caused by the conversion to the HTSUSA.
Since the language is different, this office is not bound by
prior administrative decisions.
Finally, the classification principles of merchandise under
the HTSUSA as found in the General Rules of Interpretation
("GRIs"), dictate that the lithographed tinplate cannot be
classified in heading 7326. GRI 1, HTSUSA, 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...according ..to the following provisions." The
headings in contention are heading 7210, 7212, and 7326, HTSUSA.
These headings describe the following:
7210 Flat-rolled products of iron or nonalloy
steel, of a width of 600 mm or more, clad,
plated or coated...
* * * * * * * * * * * * *
-4-
7212 Flat-rolled products of iron or nonalloy
steel, of a width of less than 600 mm, clad
plated or coated...
* * * * * * * * * * * * *
7326 Other articles of iron or steel...
The section and legal notes do not provide any guidance for
the coverage of the headings. The tinplate cannot be classified
by GRI 1 and the "headings and any relative section or chapter
notes.." GRI 3, HTSUSA, one of "the following provisions" must
be utilized. When goods are prima facie classifiable under two
or more headings GRI 3(a), HTSUSA, requires that the heading
which provides the most specific description shall be preferred.
You do not dispute that these products are flat-rolled
products which are clad, plated or coated. Although heading 7326
does describe the lithographed tinplate, headings 7210 and 7212
provide a more specific description. Classification in headings
7210 and 7212 is further supported by the Explanatory Notes to
the HTSUSA. The Explanatory Notes, although not dispositive, are
to be looked to for guidance in the proper interpretation of the
HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Explanatory Note 72.10 states that "clad, plated or coated"
as used in heading 7210 applies to products which have been
subjected to coating with metal (including electroplating),
coating with non-metallic substances (including surface painting)
and cladding. Harmonized Commodity Description and Coding System
("HCDCS") Vol. 3, p. 997. These processes are described in Part
(C)(2), Items (d)(iv), (d)(v), and (e) of the General Explanatory
Note to Chapter 72. HCDCS, Vol. 3, p. 982. The same meaning is
given to the terms "clad, plated or coated" of heading 7212.
Explanatory Note 72.12, HCDCS, Vol. 3, p. 1000. Thus, is it
evident that articles which have been clad, plated or coated are
to be included within Chapter 72 if described by a heading.
Furthermore, Explanatory Note 73.26 states that articles are to
be classified in heading 7326 if they are not "more specifically
covered elsewhere in the Nomenclature." HCDCS, Vol. 3, p. 1037.
The lithographed tinplate is more specifically described in
heading 7210 and 7212.
The lithographed tinplate is a flat-rolled article of steel
which is clad, plated or coated. In accordance with GRI 3(a),
it is specifically described by headings 7210 and 7212. The
proper classification for the lithographed tinplate is in
subheading 7210.90.60 or subheading 7212.50.00 as "Flat-rolled
products of iron or nonalloy steel, of a width of 600 mm or more,
clad, plated or coated...Other...Other...Electrolytically coated
or plated with base metal..." and as "Flat-rolled products of
-5-
iron or nonalloy steel, of a width of less than 600 mm, clad
plated or coated...Otherwise plated or coated..." See
Headquarters Ruling Letter 084650, dated September 15, 1989.
HOLDING:
The lithographed tinplate are flat-rolled articles of steel
which are clad, plated or coated. In accordance with GRI 3(a),
it is specifically described by headings 7210 and 7212. The
proper classification for the lithographed tinplate is in
subheading 7210.90.60 or subheading 7212.50.00 as "Flat-rolled
products of iron or nonalloy steel, of a width of 600 mm or
more, clad, plated or coated...Other...Other...Electrolytically
coated or plated with base metal..." and as "Flat-rolled products
of iron or nonalloy steel, of a width of less than 600 mm, clad
plated or coated...Otherwise plated or coated..." NY 856239 is
affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division