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HQ 958392

October 20, 1998
CLA-2 RR:CR:TE 958392 jb


TARIFF NO.: 4503.90.6000; 4504.90.0000

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. .


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.


What is the proper classification for the merchandise at issue?


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.


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

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.


John Durant, Director

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