Cummins Inc. v. United States

Slip Op. 05-59

United States Court of International Trade

CUMMINS INCORPORATED,*

Before: Pogue, Judge

Plaintiff,

v.

Consol. Court No. 01-00073

UNITED STATES,

Defendant.

[Plaintiff’s motion for summary judgment denied; Defendant’s cross-

motion granted. Judgment entered for Defendant.]

Decided: May 17, 2005

Barnes, Richardson & Colburn, (Lawrence M. Friedman, David G.

Forgue) for Plaintiff.

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,

Attorney in Charge, International Trade Field Office; Beth C.

Brotman, Attorney, Of Counsel, Office of Assistant Chief Counsel,

International Trade Litigation, U.S. Bureau of Customs and Border

Protection, for Defendant.

OPINION

Pogue, Judge: This case presents the question of when, in the

production of a diesel engine crankshaft (“crankshaft” or

“import”), alloy steel becomes a crankshaft for tariff purposes.

Plaintiff, Cummins Incorporated (“Cummins” or “Plaintiff”),

___________________

*Cummins Engine Company was renamed Cummins Incorporated during

the pendency of these proceedings.

Consol. Court No. 01-00073 Page 2

challenges a decision of the United States Bureau of Customs and

Border Protection (“Customs” or “Defendant”). Cummins asserts that

its crankshafts were “semifinished products of other alloy steel”

upon importation into Mexico, were transformed into crankshafts in

Mexico, and therefore “originated” in Mexico thereby rendering them

eligible for duty free treatment under the North American Free

Trade Agreement (“NAFTA”). Customs avers that the crankshafts did

not “originate” in Mexico and therefore are dutiable at 2.5 percent

ad valorem.

Before the Court are cross-motions for summary judgment

pursuant to USCIT Rule 56. Jurisdiction is predicated on 19 U.S.C.

§ 1515 (2000) and 28 U.S.C. § 1581(a). The Court concludes that

Plaintiff’s crankshafts did not originate in Mexico and accordingly

grants Defendant’s motion for summary judgment.

I. Background

A.

Cummins is a manufacturer and importer of crankshafts. The

crankshafts in question started their journey in Brazil where they

were forged from alloy steel into the general shape of a crankshaft

by Krupp Metalúrgica Campo Limpo (“Krupp”).1 Pl.’s Mem. Supp.

1

Cummins utilized a closed-die forging process, which

involves forging between matrices. Agreed Stmt. Facts at para. 1

(Dec. 23, 2004 version) (“Agreed Stmt. Facts”). “[A]fter

forging,” the goods were (i) trimmed, id. at para. 2, and (ii)

coined, para. 24-25, as well as (iii) shot blasted, id. id. at

Consol. Court No. 01-00073 Page 3

Summ. J. at 7 (“Pl.’s Mem.”). Thereafter, Cummins de México, S.A.

(“CUMMSA”), Plaintiff’s wholly owned subsidiary, imported the

products into Mexico where the they were subjected to additional

operations.2 Id. Upon importation into Mexico, Mexican

authorities classified the crankshafts under heading 8483,

Harmonized Tariff Schedule (“HTS”), as crankshafts. Pl.’s Resp.

Ct.’s Questions of April 5, 2005 (“Pl.’s Resp. Ct.’s Quest.”) at 9.

From Mexico, Cummins imported the goods into the United States.

Agreed Stmt. Facts at para. 44; see also id. at paras. 35, 43. At

the time of entry into the United States, as both parties agree,

the products were classifiable under subheading 8483.10.30 of the

Harmonized Tariff Schedule of the United States (“HTSUS”) which

covers “[t]ransmission shafts (including camshafts and crankshafts)

para. 28. Once the goods cooled, they were removed from the

dies, and (iv) the ends were milled (a machining process) to

allow them to be securely clamped into machines used for final

machining operations performed in Mexico. Id. At para. 31.

Finally, the goods’ mass centers (i.e., centers of balance) were

established by milling the ends and machining locator center

points on each end. Id. at para. 32.

2

In Mexico, the goods underwent at least fourteen different

machining operations, touching ninety-five percent of each good’s

surface. Agreed Stmt. Facts para. 39. The goods’ mass centers

were also reestablished through the same process performed in

Brazil. Id. at para. 37. These machining processes removed up

to one-third of the material from certain areas of the goods and

between one-third and two-fifths of an inch of steel from other

areas. See Cummins Engine Co. v. United States, 23 CIT 1019,

1021, 83 F. Supp. 2d 1366, 1368 (1999).

Consol. Court No. 01-00073 Page 4

and cranks . . . .”3 Id.

Pursuant to the United States’ tariff laws, products imported

from Mexico and Canada are eligible for preferential duty treatment

if the goods “originate in the territory of a NAFTA party[.]”

General Note 12(a)(ii), HTSUS; see also 19 U.S.C. § 3332 (2000).

One way a product may originate in the territory of a NAFTA party

is if it is “transformed in the territory” of a NAFTA party.4

General Note 12(b)(ii), HTSUS. As is relevant in this case, one

3

Merchandise classifiable under subheading 8483.10.30,

HTSUS, includes:

8483 Transmission shafts (including camshafts and

crankshafts) and cranks; bearing housings,

housed bearings and plain shaft bearings;

gears and gearing; ball or roller screws;

gear boxes and other speed changers,

including torque converters; flywheels and

pulleys, including pulley blocks; clutches

and shaft couplings (including universal

joints); parts thereof:

8483.10 Transmission shafts (including camshafts

and crankshafts) and cranks:

Camshafts and crankshafts:

* * *

8483.10.30 Other.

4

The HTSUS provides four ways a product may “originate” in

the territory of a NAFTA party. A product will so originate if

it is: (i) “wholly obtained or produced entirely” in the

territory of a NAFTA party;(ii) “transformed in the territory” of

a NAFTA party; (iii) produced entirely in the territory of a

NAFTA party “exclusively from originating materials;” or (iv)

produced entirely in the territory of a NAFTA party but not with

a nonoriginating material that does not “undergo a change in

tariff classification” for the reasons set forth under General

Note 12(b)(iv), HTSUS. General Notes 12(b)(i)-(iv), HTSUS.

Consol. Court No. 01-00073 Page 5

way the HTSUS defines “transformed in the territory” of a NAFTA

party is a “change in tariff classification,” General Note

12(b)(ii)(A), HTSUS, “to subheading 8483.10 from any other

heading,” General Note 12(t)/84.243(A), HTSUS; see also Pl.’s Mem.

at 11 n.7. Therefore, as agreed to by both parties, in order for

Plaintiff’s crankshafts to have originated in Mexico, the

crankshafts must not have been classifiable under subheading

8483.10, HTSUS, when they entered Mexico.

Cummins asserts that its crankshafts did undergo this tariff

shift in Mexico because its crankshafts were classifiable under

heading 7224, HTSUS, upon entry into Mexico. More specifically,

Cummins contends that its products, upon entry into Mexico, were

“semifinished products of other alloy steel” under heading 7224,

HTSUS, because the forgings had not been “further worked” but were

only “roughly shaped by forging.”

B.

The tariff laws of the United States are generally codified in

the HTSUS. The HTSUS is predicated on the HTS which was the

culmination of an international effort to create a single commodity

coding system (tariff classification system) across nations. See

Faus Group v. United Sates, 28 CIT ___, ___, 358 F. Supp. 2d 1244,

1247 n.5 (2004). Two of the harmonized system’s essential purposes

Consol. Court No. 01-00073 Page 6

are to (1) facilitate the computation of trade statistics and (2)

establish a standard product descriptor to provide a basis for

trade concessions and predictability for international commerce.

See GATT, Analytical Index: Guide to GATT Law and Practice 101 (6th

ed. 1994). Under the Harmonized Tariff Schedule, products are

defined to a certain level of specificity (the six-digit level) at

the international level. See U.S. Customs & Border Prot., What

Every Member of the Trade Community Should Know About: Tariff

Classification 10 (2004). Nonetheless, each nation, including the

United States, reserves the right to establish further subdivisions

(beyond the six-digit level). Id. at 11.5 In this case, the

competing provisions are both set at the international level.

To resolve interpretative disputes that arise when many

nations employ the same tariff schedule and to adapt the Schedule

to the ever evolving array of products, the member states to the

HTS created the World Customs Organization (“WCO”)6 to issue

classification opinions, draft and update explanatory notes, and

recommend amendments to the HTS itself. Id. at 9, 26-29. The

United States has acceded to all these terms. Under 19 U.S.C. §

3005(a), Congress empowered the International Trade Commission to:

5

It is this degree of additional specificity that makes the

HTSUS unique to the United States.

6

The World Customs Organization was originally named the

Customs Cooperation Council but was renamed in 1994. U.S.

Customs & Border Prot., What Every Member of the Trade Community

Should Know About: Tariff Classification 9 n.1 (2004)

Consol. Court No. 01-00073 Page 7

[K]eep the Harmonized Tariff Schedule under continuous

review and periodically, at such time as amendments to

the Convention are recommended by the Customs Cooperation

Council for adoption, and as other circumstances warrant,

shall recommend to the President such modifications in

the Harmonized Tariff Schedule as the Commission

considers necessary or appropriate –

(1) to conform the Harmonized Tariff Schedule with

amendments made to the Convention;

(2) to promote the uniform application of the

Convention and particularly the Annex thereto;

(3) to ensure that the Harmonized Tariff Schedule is

kept up-to-date in light of changes in technology or

in patterns of international trade;

(4)to alleviate unnecessary administrative burdens;

and

(5) to make technical rectifications.

Upon these recommendations, Congress granted the President

authority to:

[P]roclaim modifications . . . to the Harmonized Tariff

Schedule if the President determines that the

modifications –

(1) are in conformity with United States

obligations under the convention; and

(2) do not run counter to the national economic

interest of the United States.

19 U.S.C. § 3006. Lastly, Congress authorized the Treasury

Department, Commerce Department, and the International Trade

Commission to establish procedures to ensure “that the dispute

settlement provisions and other relevant procedures available under

the Convention are utilized to promote the United States export

interests” and to submit “classification questions to the

Harmonized System Committee of the Customs Cooperation Council.”

19 U.S.C. § 3010(b)(2)(C). From this brief survey of the statutory

landscape it is clear that Congress intended, in large measure, to

Consol. Court No. 01-00073 Page 8

harmonize United States tariff classifications with the

recommendations of the WCO.

C.

This is not the first time the Court has been called upon to

address whether Cummins’ crankshafts underwent a tariff shift in

Mexico. In Cummins Engine Co. v. United States, 23 CIT 1019, 83 F.

Supp. 2d 1366 (1999) (“Cummins I”), the Court denied Plaintiff’s

contention that its crankshafts underwent the requisite tariff

shift. Following that opinion, Cummins filed for an amended

advanced ruling letter with one variation in the facts stated in

Cummins I.7 Relying, in part, on the Court’s decision in Cummins

I, Customs maintained that, despite the changes to its

manufacturing process, Cummins’ crankshafts still did not

“originate” in Mexico.

In formulating this analysis, Customs submitted the question

to the WCO. See Classification of Certain Forgings for Crank

Shafts, Doc. NC0317E1 (Oct. 10, 2000) (“Certain Forgings”). After

a formal review, the WCO issued a classification opinion which was

approved by the member states 31 to 1. Id., see also Decisions of

the Harmonized System Committee, Annex H/9 to Report to the Customs

7

Unlike the imported crankshafts in Cummins I, one of the

fourteen operations performed in Mexico on the crankshafts at

issues here was machining grease pockets, fifty millimeters in

diameter and thirteen millimeters deep, into the flange ends of

the goods with a lathe. Agreed Stmt. Facts at para. 42. For the

crankshafts considered in Cummins I, the grease pockets were

machined in Brazil.

Consol. Court No. 01-00073 Page 9

Co-operation Council of the Twenty-Sixth Session of the Harmonized

System Committee, Doc. NC0340E2 (Nov. 24, 2000) (“WCO Decision”);

Amendments to the Compendium of Classification Opinions Arising

from the Classification of Certain Forgings for Crank Shafts in

Subheading 8483.10, Doc. NC0379E1 at para. 2 (March 8, 2001). The

classification opinion determined that the crankshafts were

properly classifiable under heading, 8483, HTS and not heading

7224, HTS. Amendments to the Compendium of Classification Opinions

Arising from the Classification of Certain Forgings for Crank

Shafts in Subheading 8483.10, Doc. NC0379E1 at para. 2 (March 8,

2001). The WCO also found the text sufficiently clear on this

issue and recommended no amendment to text of the HTS.8 See WCO

Decision. Therefore, as this case stands, Mexico’s Customs

authority (Aduana México),9 Customs, and the WCO maintain that the

8

Although the WCO deemed the English version of the HTS to

be clear, it recommended amendments to the Explanatory Notes.

See WCO Decision; Study of the Possible Misalignment between the

French Expressions “Ebauches de Forge” and “Ebauches Brutes de

Forge” and the English Expression “Roughly Shaped by Forging” in

the Explanatory Notes to Headings 72.07 and 84.83, Doc. NC0394E1

(April 9, 2001).

9

As both parties correctly point out, in NAFTA cases, the

United States reserves the right to reexamine the classification

of the products at the time they entered Mexico. See North

American Free Trade Agreement, art. 506 §§ 11-13 (1993) (entered

into force Jan. 1, 1994) (reprinted in Jackson, et al, 2002

Documents Supplement to Legal Problems of International Economic

Relations at 512 (4th ed. 2002)). Nevertheless, this does not

render Mexico’s opinion of no value. Rather, as Mexico and the

United States are both parties to the Harmonized Tariff Schedule,

opinions of sister signatories are probative. See, e.g., Olympic

Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J.

Consol. Court No. 01-00073 Page 10

crankshafts in question were not classifiable under heading 7224,

HTS, as argued by Cummins, when they entered Mexico.

Following the publication of Customs’ advanced ruling letter,

Cummins began to import its crankshafts into the United States.

Customs assessed the crankshafts a duty rate applicable to products

that did not originate in a NAFTA party. Cummins now seeks review

of that assessment.10

dissenting) (“Today's decision stands out for its failure to give

any serious consideration to how the courts of our treaty

partners have resolved the legal issues before us.”); Air France

v. Saks, 470 U.S. 392, 404 (1985) (noting that opinions of our

sister signatories are entitled to considerable weight)

(O’Connor, J.). This is especially true when the United States

and WCO agree with this interpretation and where, as here, the

interest of promoting uniformity across nations is strong.

Moreover, it is unlikely that Mexican authorities have interests

adverse to the United States on this question and Cummins had

every ability to challenge the classification. An additional

consideration is that the NAFTA regime should not encourage

importers to exploit divergences in tariff classifications to

take unfair advantage of the system. It would not seem

appropriate, for example, for an importer to gain the benefit of

a lower tariff rate for its imports into Mexico under one

heading, then, argue a different classification before Customs

entitling it to further tariff benefits.

10

Cummins originally requested the advance letter ruling on

March 15, 2000 and September 13, 2000. Headquarters Ruling

964019 (Dec. 13, 2000). In response to Customs’ negative

determination, Cummins filed an action under 28 U.S.C. § 1581(h)

(the “§ 1581(h) action”). Subsection (h) authorizes this Court

to review pre-importation Customs’ rulings if the party

commencing the action demonstrates that “he would be irreparably

harmed unless given an opportunity to obtain judicial review

prior to such importation.” 28 U.S.C. § 1581(h). Following

Defendant’s response to the § 1581(h) action, Cummins imported a

test shipment of three finished crankshafts, and marked the goods

as originating from Mexico. After protesting Customs’

classification of its test shipment, Cummins filed an action

under § 1581(a), and the Court consolidated the two actions.

Consol. Court No. 01-00073 Page 11

II. Standard of Review

Both parties have moved for summary judgment pursuant to USCIT

Rule 56. Summary judgment is only appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” USCIT R. 56(c). Material issues

only arise concerning “facts that might affect the outcome of the

suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Consequently, in classification cases,

genuine issues of material fact only arise when there is a dispute

over the use, characteristics, or properties of the merchandise

being classified. Brother Int’l Corp. v. United States, 26 CIT

867, 869, 248 F. Supp. 2d 1224, 1226 (2002). Because the Court

finds no issues of material fact in dispute, summary judgment is

appropriate.

III. Classifying the Imports

In this case the parties have identified two competing

provisions under which the imports may be classified: heading 7224,

Because Plaintiff actually imported the test shipment of the

finished crankshafts, the Court finds Cummins’ § 1581(h) action

fails to present a live controversy and is therefore moot.

Accordingly, that portion of the consolidated case is dismissed.

Therefore, this case concerns only the challenge to Customs’

liquidation of the imported crankshafts.

Consol. Court No. 01-00073 Page 12

HTSUS, and heading 8483, HTSUS. Because Customs relies on GRI 2 in

classifying the imports under heading 8483, HTSUS, and GRI 2 may

only be applied after GRI 1 is exhausted, the Court will first

address whether the imports fall under heading 7224, HTSUS.

Concluding that they do not fall under heading 7224, HTSUS, the

Court will next consider whether the imports are classifiable under

heading 8483, HTSUS, finding that they are.

A.

The proper classification of merchandise is governed by the

General Rules of Interpretation (“GRIs”) to the HTSUS. See Orlando

Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998);

but see Bauer Nike Hockey USA v. United States, 393 F.3d 1246, 1252

(Fed. Cir. 2004). GRI 1, HTSUS, provides that, “for legal

purposes, classification shall be determined according to the terms

of the headings and any relative section or chapter notes.” In

construing the terms of headings and notes, although tariff

provisions employ the language of commerce, courts have long held

that presumptively a term’s commercial meaning is the same as its

common meaning. Carl Zeiss, Inc. v. United States, 195 F.3d 1375,

1379 (Fed. Cir. 1999). Accordingly, the Court will construe the

terms of both headings by reference to their common meanings. See

Novosteel SA v. United States, 25 CIT 2, 11, 128 F. Supp. 2d 720,

728 (2001) (construing the terms in question according to their

Consol. Court No. 01-00073 Page 13

common meaning), Winter-Wolff, Inc. v. United States, 22 CIT 70,

75, 996 F. Supp. 1258, 1265 (1998) (construing similar terms

according to their common meaning). In determining a term’s common

meaning, the Court may look to dictionaries, lexiographic and

scientific authorities, as well as the Court’s own understanding of

the term. Carl Zeiss, 195 F.3d at 1379.

1.

The Court first turns to the language of heading 7224, HTSUS.

Heading 7224, HTSUS, covers “semifinished products of other alloy

steel.” The HTSUS defines “semifinished products” as “products of

solid section, which have not been further worked than . . .

roughly shaped by forging, including blanks for angles, shapes or

sections.” Chapter 72, Note 1 (ij), HTSUS. From the terms of this

language, in order to be a semifinished product, a product must be:

(1) less than roughly shaped by forging, or (2) if roughly shaped

by forging, not further worked; and/or11 (3) a “blank[] for angles,

shapes, or sections.”

The imports here meet the definition of a “blank.” See

Cummins I, 23 CIT at 1023-4, 83 F. Supp. 2d at 1371; Pl.’s Mem. at

11. Therefore, the language “including blanks for angles, shapes,

and sections” directly implicates the imports. That these terms

11

The Court addresses the relationship between these clauses

below. See infra at 14-24.

Consol. Court No. 01-00073 Page 14

of the heading do not embrace every type of blank, but only a

subset thereof, is evidenced by the words “angles, shapes, or

sections.” These words restrict the “including” language to only

a class of blanks. Cf. Mertens v. Hewitt Associates, 508 U.S. 248,

258 (1993) (“We will not read the statute to render the modifier

superfluous.”). Both parties agree that the HTSUS defines

“angles, shapes, and sections” as “products having a uniform cross

section along their whole length which do not conform to any of the

definitions . . . above, or the definition of wire.” Note 1(n) to

Chapter 72, HTSUS. The imports do not have a uniform cross

section, nor will the finished product, and therefore, as conceded

by Cummins, do not meet this description. Consequently, while the

imports are blanks, they are not blanks for angles, shapes, or

sections.12

As previously noted, heading 7224, HTSUS, covers “products of

12

The WCO did not define this requirement in precisely the

same manner but arrived at the same conclusion. Instead, the WCO

found this language only incorporated “blanks which [did not]

have the approximate shape or outline of the finished article,

i.e., [were not] unfinished articles having the essential

character of finished articles.” Certain Forgings, Doc. NC0317E1

at para. 27; cf. John V. Carr & Son, Inc. v. United States, 72

Cust. Ct. 19, 26 (1974). Cummins’ imports, however, do not fit

this description. The crankshafts are “forgings [that] have the

general shape of crankshafts and are intended solely for use as

crankshafts.” See Agreed Stmt. Facts at para. 53. Therefore,

under the WCO’s legal analysis, the crankshafts do not fall under

heading 7224, HTSUS. The Court notes that Note 1(n) to Chapter

72, HTSUS, defines the term “angles, shapes, and sections”

whereas Note 1(ij) uses the term “angles, shapes, or sections.”

However, given that the common meaning and HTSUS meaning arrive

at the same conclusion, the Court need not dwell on this issue.

Consol. Court No. 01-00073 Page 15

solid section, which have not been further worked than . . .

roughly shaped by forging, including blanks for angles, shapes or

sections.” (Emphasis added). As courts have long recognized, the

meaning of the term “including” varies with context. The Newman

Co. v. United States, 57 Cust. Ct. 117, 124 (1966); see also

Montello Salt Co. v. State of Utah, 221 U.S. 452, 465 (1911). A

statute’s use of the term “including” generally may serve: (1) not

to provide an “all-embracing definition, but [to] connote[] simply

an illustrative application of the general” description without

limiting the general description;13 (2) to add products to the

heading that fall outside the general description;14 (3) to arrest

any doubt as to whether the exemplars are included within the

class;15 or (4) to demarcate the boundary between what falls within

13

Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314

U.S. 95, 100 (1941), see also Phelps Dodge Corp. v. NLRB, 313

U.S. 177, 189 (1941) (“To attribute such a function to the

participial phrase introduced by ‘including’ is to shrivel a

versatile principle to an illustrative application. We find no

justification whatever for attributing to Congress such a

casuistic withdrawal of the authority which, but for the

illustration, it clearly has given the Board. The word

‘including’ does not lend itself to such destructive

significance.”). Even if the Court were to use this meaning of

“including,” such a reading would still cast doubt upon Cummins’

argument as blanks with the character of articles of other

headings are quite different than blanks for angles, shapes, or

sections. See infra at 19-21(discussing this distinction).

14

United States v. Pierce, 147 F. 199, 201 (2nd Cir. 1906)

(interpreting a tariff provision); The Newman Co. v. United

States, 57 Cust. Ct. 117, 125 (1966).

15

Young v. United States, 315 U.S. 257, 261 (1942), Faus

Group v. United Sates, 28 CIT ___, ___, 358 F. Supp. 2d 1244,

1252 n. 14 (2004).

Consol. Court No. 01-00073 Page 16

the general class from that which falls without thereby limiting

the scope of the general class.16

In deciding which of these possibilities apply, the Court must

read the “including” language in the light of the context and

purpose of its use, see, e.g., Abbott Lab. v. CVS Pharmacy, Inc.,

290 F.3d 854, 860 (7th Cir. 2002); Adams v. Dole, 927 F.2d 771,

776-77 (4th Cir. 1991), or as the legislative history may suggest,

Hiller v. United States, 106 F. 73, 74 (2nd Cir. 1901)

(interpreting a tariff provision). There are four reasons, in

this case, why the “including” language is best read as demarcating

a boundary line thereby excluding blanks with the character of

finished products.

First, the most natural reading of the definition is that the

term “including” plays the part of defining the boundary of the

general class (thereby establishing the limits of what falls within

the class with respect to “blanks”). Cf. Bausch & Lomb v. United

States, 148 F.3d 1363, 1367 (Fed. Cir. 1998) (invoking the canon of

expressio unius est exclusio alterius to hold that what was not

16

Montello Salt Co. v. State of Utah, 221 U.S. 452, 465

(1911), Abbott Lab. v. CVS Pharmacy, Inc., 290 F.3d 854, 860 (7th

Cir. 2002); Bausch & Lomb v. United States, 148 F.3d 1363, 1367

(Fed. Cir. 1998), Adams v. Dole, 927 F.2d 771, 776-77 (4th Cir.

1991); Cashman v. Dolce Int’l/Hartford, Inc., 225 F.R.D. 73, 84

(D. Conn. 2004) (“the word ‘including’ need not always be used by

Congress in an illustrative manner. The term can also be used

and construed as restrictive and definitional.”). The Court

acknowledges that these categories are far from precise and that

there may be extensive overlap between the categories.

Consol. Court No. 01-00073 Page 17

included within “including” language was excluded). The

“including” clause itself sets forth a class of objects, i.e.,

“blanks.” That the general class of blanks was qualified by the

terms “angles, shapes or sections” signifies that the entire class

of blanks was not included, but only certain types of blanks. Cf.

Harmonized Commodity Description and Coding System Explanatory Note

to Heading 72.16, at 1240 (3rd ed. 2002) (“Explanatory Notes”)

(limiting the coverage of the term “angles, shapes, and sections”

to products that do not assume the character of articles of other

headings). The inclusion of a class of products (i.e., blanks),

but only a subset of that class (i.e., for angles, shapes, or

sections), suggests that those elements not included within that

class and are excluded.

More importantly, however, is the fact that the term “blank”

is a term of art.17 Pursuant to GRI 2, “blanks” are classifiable

under the headings of the finished product of which they bear the

character unless otherwise directed by GRI 1. That blanks are

classifiable under the headings of finished products, unless

otherwise directed by the GRI 1, explains the import of the

“including” language. Specifically, the “including” language

establishes a rational dividing line between those blanks covered

17

See Explanatory Notes to Rule 2(a) at 2 (“The term “blank”

means an article, not ready for direct use, having the

approximate shape or outline of the finished article . . . , and

which can only be used, other than in exceptional cases, for

completion into the finished article.”).

Consol. Court No. 01-00073 Page 18

under heading 7224, HTSUS, from those blanks classifiable under

other headings by virtue of GRI 2. That the drafters acknowledged

the default rule (with the “including blanks for angles, shapes, or

sections” clause), indicates that the drafters were conscientious

of this default rule when specifying the scope of heading 7224,

HTSUS. Without such instruction (when considered in light of the

imprecision of the other terms of the heading) classifying blanks

becomes difficult; with such instruction, classifying blanks

becomes more precise and logical. This explains the drafters

decision to employ the “including” language. The fact that the

drafters recognized the problem of the scope of heading 7224,

HTSUS, and purposefully did not include certain types of blanks,

indicates that the drafters intended to distinguish the types of

blanks covered under that heading. Consequently, the reasonable

interpretation of this language is that blanks that are not

“angles, shapes, or sections” are excluded from heading 7224,

HTSUS.

Moreover, this reading is also consistent with the terms

“roughly shaped by forging.” The Explanatory Notes specify that

roughly shaped forgings require “considerable further shaping.”

See Explanatory Note to Heading 72.07 at 1228. Although this

description lacks a degree of precision, what is clear, is that not

all types of forgings are included within the terms used in Chapter

72, Note 1(ij), but only roughly shaped forgings. Given this lack

Consol. Court No. 01-00073 Page 19

of precision, the use of the a participle such as “including,” is

best read as defining and clarifying the preceding terms. Cf.

Montello Salt Co. v. Utah, 221 U.S. 452, 465 (1911) (“‘Including’

being a participle is in the nature of an adjective and is a

modifier.”). This is especially true given that the term “blank”

is defined in terms of the advancement in the shape of the article

in question, i.e., blanks “hav[e] the approximate shape or outline

of the finished article.” Accordingly, when the terms “roughly

shaped by forging” are read in conjunction with the “including”

language, it is apparent that the drafters meant to limit heading

7224, HTSUS, to only a certain type of blanks.

Second, this reading is reinforced by the purpose of heading

7224, HTSUS. Cf. Dole Food Co. v. Patrickson, 538 U.S. 468, 484

(2003) (Breyer, J. concurring in part and dissenting in part)

(“Statutory interpretation is not a game of blind man’s bluff.

Judges are free to consider statutory language in light of a

statute’s basic purposes.”). Heading 7224, HTSUS, covers products

that have been advanced beyond a natural state (i.e., raw

materials) but insufficiently advanced to be classified under a

heading covering finished products. In contrast, GRI 2 calls for

the classification of blanks under the heading of the finished

products of which they assume the character. That the HTSUS

provides for the classification of some blanks under heading 7224,

HTSUS, is partly necessitated by the fact that alloy steel, at an

Consol. Court No. 01-00073 Page 20

intermediate stage of manufacture, cannot be classified under the

heading of a finished product because it still can be converted

into many different final products -- it is this potential that

renders it inapt to classify some semifinished products under the

headings of finished products. However, where, as in this case,

a product is so sufficiently advanced that it has the recognizable

shape of a finished product, and can only be converted into a

single product, it can easily be classified under the heading of a

finished product. This reading is bolstered by the Explanatory

Notes which direct that semifinished products of other alloy steel

under heading 7224, HTSUS, “may be worked provided that they do not

thereby assume the character of articles or of products falling in

other headings.” See Explanatory Note to Chap. 72, Sub-chapter IV

at 1245 (emphasis in original); cf. Note 1(f) to Section XV, HTSUS

(instructing that crankshafts are not classifiable under such

headings as heading 7224, HTSUS). The Explanatory Notes have

particular relevance here as heading 7224, HTSUS, was drafted at

the international level. Cf. Pima Western, Inc. v. United States,

20 CIT 110, 113, 915 F. Supp. 399, 402 (1996) (“Where the United

States has adopted headings, subheadings, and related chapter notes

verbatim from the CCC’s version, the CCC’s Explanatory Notes are

especially helpful in interpreting the HTSUS, albeit not

dispositive.”). Accordingly, the “including” language is best read

as creating a rational dividing line distinguishing blanks

Consol. Court No. 01-00073 Page 21

classified as semifinished products from blanks considered

classified under the headings of finished products.

Third, a similar analysis appears to have been adopted by the

Secretariat (and presumably the body) of the WCO and Customs. The

WCO found that by “[a]pplication of [GRI] 2(a) and Note 1(f) to

Section XV,” “closed-die crank shaft forgings (sometimes described

as blanks)” are considered unfinished crankshafts classifiable

under 8483.10, HTSUS. Amendments to the Compendium of

Classification Opinions Arising from the Classification of Certain

Forgings for Crank Shafts in Subheading 8483.10, Doc. NC0379E1 at

3 (March 8, 2001). For the United States to defect from the

international norm would frustrate the objectives of a harmonized

tariff system. See 19 U.S.C. 3005(a)(2). This, in turn, would

create uncertainty in international trade and commerce which the

WCO was created to avoid.18 Furthermore, it is unlikely that

Congress would have established procedures for seeking guidance

from the WCO, see 19 U.S.C. §§ 3010(b)(2)(C) & 3010(c), only to

18

Cummins argues that the facts presented to the WCO were

misleading and therefore contaminated its analysis.

Notwithstanding the fact that the WCO may not have had the full

facts that are before the Court, this in no way undermines its

legal analysis. Moreover, the facts presented were not

sufficiently different to render its legal analysis inapt.

Cummins further contends that the WCO did not consider the

significant further working of the product in Mexico, but only

considered that which had been done to the product in Brazil.

However, the plain language belies Cummins’ claim, i.e., “further

worked . . . than roughly shaped by forging.” This language

focuses on what has been done to the product, not what will be

done to the product.

Consol. Court No. 01-00073 Page 22

have the Court entirely ignore this guidance.19 This is especially

true when the WCO has (essentially) adopted the United States’

interpretation of the provision. Cf. Fed. Mogul Corp. v. United

States, 63 F.3d 1572, 1582 (Fed. Cir. 1995) (noting that deference

for agency interpretations is highest when the action is a result

of compliance with international obligations), see also Crosby v.

Nat’l Foreign Trade Council, 530 U.S. 363, 381-82 (2000)

(recognizing the importance of speaking with one voice to the

international community in trade matters), Baker v. Carr, 369 U.S.

186, 217 (1962) (noting that judicial restraint is implicated in

avoiding the embarrassment of multifarious pronouncements on

questions of international concern). Additionally, as the chief

architect of the HTS(US), the WCO’s objective interpretations of

the language it devised should be given respect. Cf. Auer v.

Robbins, 519 U.S. 452, 461-63 (1997) (noting that objective

interpretations by the drafters of regulations are entitled to

19

Cf. H.R. Conf. Rep. No. 100-576, at 549 (1988) (“Although

generally indicative of proper interpretation of the various

provisions of the Convention, the Explanatory Notes, like other

similar publications of the Council, are not legally binding on

contracting parties to the Convention. Thus, while they should

be consulted for guidance, the Explanatory Notes should not be

treated as dispositive.”) (emphasis added). Nor is it reasonable

to assume that such opinions would only have effect on

administrative agencies, but not on the courts. See United

States v. Haggar Apparel Co., 526 U.S. 380, 388 (1999) (“We shall

not assume that Congress was concerned only to ensure that

customs officials at the various ports of entry make uniform

decisions but that it had no concern for uniformity once the

goods entered the country and judicial proceedings commenced.”).

Consol. Court No. 01-00073 Page 23

great weight so long as such interpretations are not clearly

erroneous); Aluminum Co. of Am. v. Cent. Lincoln Peoples’ Util.

Dist., 467 U.S. 380, 390 (1984) (“principles of deference have

particular force in [the] context of this case. The subject under

[consideration] is technical and complex. [The agency] has

longstanding expertise in the area, and was intimately involved in

the drafting and consideration of the statute by Congress.”).

Last, such an approach creates a workable and predictable

standard and is supported by the history of this provision. As the

WCO Secretariat recounted:

[O]ne interpretation for the reference to blanks in Note

1 (ij) to Chapter 72 would be that it applies to all

blanks, even those which are recognizable as final

articles, if they have not been further worked. In Doc.

24.240, the [Commission of the European Communities

(“CEC”)] proposed a definition for semi-finished

products, which included the phrase “blanks for angles,

for shapes and for sections”. Paragraph 43 of that

document reads “it was understood that the CEC proposal

regarding blanks is based on the fact that the blanks

concerned [e.g., blanks for angles, shapes or sections]

are products of industry sectors different from those

which produce finished articles. On the other hand the

classification of all recognizable blanks with the

corresponding finished articles, as suggested by the

Japanese Administration, would probably simplify the

application of the Nomenclature in this respect.[”] . .

. As the phrase “blanks for angles, shapes or sections”

is contained in the present Note 1 (ij), the Secretariat

understands that the Committee agreed with the CEC’s view

over the Japanese view. . . . The specific inclusion in

this Note of blanks for angles, shapes or sections

operated as a limited exception to the rule that

unfinished or incomplete goods, having the essential

character of the finished good, are classified in the

same heading as the good.

Certain Forgings, Doc. NC0317E1 at paras. 26-27. As this passage

Consol. Court No. 01-00073 Page 24

reveals, the Court’s interpretation is substantiated by the history

of heading 7224, HTSUS, and concern of the drafters to create a

workable and predictable standard and a nomenclature that

appropriately represented commercial practices.

Cummins objects to this analysis on multiple grounds: (1) that

this reading turns the term “including” into a word of exclusion;

(2) that the language is necessary to include blanks for angles,

shapes or sections; and (3) that this construction would require

reading “the terms of the chapter note out of order, and resort[]

to GRI 2(a) to reach the question of whether an article is a

blank.” The Court will address each objection in turn.

First, Cummins claims that the Court’s reading undermines the

general definition of “semifinished products” because Cummins’

crankshafts fall within the general definition of “semifinished

products.” Pl.’s Resp. Ct.’s Quest. at 6, 9; but see infra at 28-

32 (discussing why the crankshafts do not fall within the language

of the preceding terms). This argument is similar to the argument

advanced by the plaintiff, and rejected by the court, in Bausch &

Lomb v. United States, 148 F.3d 1363, 1366-67 (Fed. Cir. 1998). In

Bausch & Lomb, the plaintiff argued that its battery-operated

electric toothbrushes fell under heading 9603, HTSUS, covering

“[b]rooms, brushes (including brushes constituting parts of

machines, appliances or vehicles).” Although the court agreed

that plaintiff’s imports fell under the term “brushes,” it held

Consol. Court No. 01-00073 Page 25

that the subsequent “including” clause, i.e., “including brushes

constituting parts of machines, appliances or vehicles,” limited

the scope of the heading to only products meeting the description

of that clause. Bausch & Lomb, 148 F.3d at 1367.20 Similarly, even

if Cummins were correct in arguing that its imports fell within the

general description of the heading, the “including” language may,

and in this case does, indicate that the imports do not fall under

heading 7224, HTSUS.

Next Cummins argues that:

[S]emifinished products are, in part, “continuous cast

products of solid section” and include[] “other products

of solid section ...[.]” Angles, shapes, and sections

are defined as products “having a uniform solid cross

section.” Thus, the definitions are subtly different, in

that semifinished products need not have a uniform cross

section. Consequently, blanks for angles, shapes, and

sections do not appear to be included in the definition

of semifinished products. . . . Given the ubiquity of

angles, shapes, and sections in Chapter 72, it is

entirely reasonable to believe that the tariff language

would clarify the treatment of blanks for these articles.

20

The court in Baush & Lomb confirmed this reading by

noting that the “including” language was meant to further define

the preceding language to avoid the previous language becoming

over broad, and, therefore, usurping other headings. Bausch &

Lomb, 148 F.3d at 1367. Here, a similar problem exists in that

the HTSUS classifies blanks under the heading of the finished

products they resemble. The “including” language appropriately

distinguishes blanks that are considered semifinished products

from blanks considered finished products, thereby preventing

heading 7224, HTSUS, from being read to cover products intended

to be classified elsewhere.

Consol. Court No. 01-00073 Page 26

Pl.’s Resp. Ct.’s Quest. at 7-8. Considered closely,21 it is

evident that Cummins’ argument actually refutes, rather than

supports, its position. Because the definition of “semifinished

products” is sufficiently broad to include “blanks for angles,

shapes, or sections” it becomes important to determine why the

drafters felt the “including” clause was necessary. The most

reasonable explanation is that the drafters wanted to demarcate

those types of blanks included under the heading from the blanks

that were not so included. This is especially true given that the

ubiquity of blanks resembling finished products is more problematic

than blanks for angles, shapes and sections, and therefore, require

specific direction in their classification under heading 7224,

HTSUS.

Third, Cummins challenges the propriety of this reading

arguing that this logic holds:

21

The definitions of “semifinished products” and “angles,

shapes, and sections” are the same except that the definition of

“angles, shapes and sections” requires an additional element,

i.e., that the products have a uniform cross-section. Cf. Note

1 (ij) to Chapter 72, HTSUS, “Semifinished products[:] Continuous

cast products of solid section . . .” with Note 1 (n) to Chapter

72 (“Angles, shapes and sections[:] Products having a uniform

solid cross section . . .”). Therefore, blanks for angles,

shapes, and sections are a subset of “semifinished products” and

fall clearly within the definition of “semifinished products.”

As a matter of logic, all blanks for angles, shapes and sections

are semifinished products, but not all semifinished products are

blanks for angles, shapes, or sections.

Because blanks resembling finished products are more

complex, it would be much more likely that they would fall

outside this language. Therefore, the failure to include them

under the heading is a clear indication of their exclusion.

Consol. Court No. 01-00073 Page 27

[T]hat articles that are blanks but are not for angles,

shapes, or sections are excluded from heading 7224, HTSUS

without regard to whether they are roughly shaped by

forging, or further worked. This interpretation

necessitates reading the terms of the chapter note out of

order, and resorting to GRI 2(a) to reach the question of

whether an article is a blank before determining whether

it otherwise meets the definition of semifinished

products.

Pl.’s Resp. Ct.’s Quest. at 9 (emphasis in original). This

argument is unsound. First, it is the language of the heading

itself that requires defining the term “blank.” To suggest that

because GRI 2 incorporates the notion of the “blank,” a court is to

ignore the language of the heading or chapter note, betrays the

command of GRI 1. GRI 1, HTSUS (“for legal purposes,

classification shall be determined according to the terms of the

headings and any relative section or chapter notes.”). Cummins’

failure to offer an alternative definition suggests that Cummins

wants to read this word out of the heading, which, of course, the

Court may not do. Moreover, it does make sense, for purposes of

the GRI 1 analysis of heading 7224, HTSUS, to define “blanks” as

used in the heading in a similar manner to GRI 2. Because the

HTSUS has a method for classifying blanks which resemble finished

products these products are classifiable elsewhere. Consequently,

as stated above, this creates a rational dividing line between

types of blanks. Second, that a court is not allowed to gather

meaning from all the words in the heading is legally incorrect.

Statutes are read holistically and so that no part of the statute

Consol. Court No. 01-00073 Page 28

is rendered superfluous. See Hibbs v. Winn, 124 S.Ct. 2276, 2285-

86 (2004). This may require that terms appearing later in a

sentence inform the meaning of terms appearing earlier in that

sentence. Cf. Bausch & Lomb, 148 F.3d at 1367 (employing a very

similar approach to the one employed here.). This is especially

true where the meaning of other terms of the heading are in dispute

and do not admit an easy answer. See Cummins I, 23 CIT 1019, 1026-

27, 83 F. Supp. 2d 1366, 1373-74 (1999) (setting forth the analysis

of construing heading 7224, HTSUS); cf. Jarecki v. G. D. Searle &

Co., 367 U.S. 303, 307 (1961) ("The maxim noscitur a sociis . . .

is often wisely applied where a word is capable of many meanings in

order to avoid the giving of unintended breadth to the Acts of

Congress.").

* * *

Accordingly, because the imports are blanks, but not blanks

for angles, shapes, or sections, they are not classifiable under

heading 7224, HTSUS.

2.

Even if the “including” language does not per se exclude

Cummins’ imports from heading 7224, HTSUS, other aspects of the

heading’s plain language do. Heading 7224, HTSUS, covers “products

of solid section, which have not been further worked than . . .

Consol. Court No. 01-00073 Page 29

roughly shaped by forging, including blanks for angles, shapes or

sections.” Even assuming that the imports are only “roughly

shaped” by forging, Cummins’ imports have been “further worked”

and, therefore, are not classifiable under heading 7224, HTSUS.

In Cummins I, the Court defined the term “further worked”

using its common meaning, which is: “to form, fashion, or shape an

existing product to a greater extent.” Cummins I, 23 CIT at 1024,

83 F. Supp. 2d at 1371 (citing Winter-Wolff, Inc. v. United States,

22 CIT 70, 75, 996 F. Supp. 1258, 1265 (1998)). In this case, the

imports are “formed” and “shaped” after forging while still in

Brazil.

As the parties have agreed, the imports are “trimmed” in

Brazil after forging. Agreed Stmt. Facts at para. 2. Furthermore,

the parties have agreed that “‘[t]rimming’ removes flash – the

excess material that comes out of dies in the forging process,” id.

at para. 3, is “accomplished through cutting hot, malleable flash

with a die,” id. at para. 4, and that “[b]efore the article in

question enters the trimming machine, it is in one shape. As a

result of trimming[,] the flash [] comes out of the trimming

machine a different shape,” id. at para. 5. This description

clearly demonstrates that the crankshafts are “formed” and “shaped”

after forging. To wit, the products are “further worked” after

forging and literally meet the definition of “further worked.”

Likewise, the parties agree that the articles are coined after

Consol. Court No. 01-00073 Page 30

forging in Brazil. Coining does not occur in the forging press,

but in a separate machine, id. at para. 24, and involves stamping

the article to straighten it, id. at para. 27. Thus, coining

likewise unarguably “forms” and “shapes” the crankshafts after

forging and meets the definition of “further worked.”22

Notwithstanding the fact that trimming and coining occur

“after forging,” and meet the definition of “further worked,”

Cummins argues that these processes are necessary to make the

forgings commercially viable products and, therefore, “the term

‘forging’ in the tariff, when taken in its commercial sense, does

not contemplate an untrimmed [and uncoined] forging.” Pl.’s B. to

Pl.’s Mot. & Mem. Supp. Sum. J. at 5. In other words, Cummins

raises the specter of a “commercial meaning” of “forging” in which

trimming and coining are included within the umbrella (or penumbra)

22

The Court further notes that coining results in “closer

tolerances than can be economically produced in the forging die,”

Forging Industry Association, The Forging Handbook 155 (1985),

and occurs in a separate machine than the forge, id.; see also

Agreed Statement of Mat. Facts at para. 23. In contrast,

semifinished products are “of rough appearance and large

dimensional tolerances, produced from blocks or ingots by action

of power hammers or forging presses.” Explanatory Notes at 1228.

This process (as well as trimming) not only necessitates actions

not related to power hammers or forging presses, but also produce

“closer tolerances” (contrary to the large tolerances epitomizing

semifinished goods). Therefore, these processes cannot be

considered incidental to “roughly shap[ing] by forging” alloy

steel, but separate operations which implicate more precisely

forged products, i.e., products that do not require considerable

further shaping.

Consol. Court No. 01-00073 Page 31

of the term “forging.”23 The failure of Cummins to adequately plead

the existence of a commercial designation24 is not necessarily fatal

as the Court is charged with the independent responsibility of

determining the correct classification of the merchandise at issue.

See Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir.

1984) (holding that the Court should divine the proper

classification of the subject merchandise even if the proper

classification has not been raised by the parties); see also Boen

Hardwood Flooring, Inc. v. United States, 357 F.3d 1262, 1265 (Fed.

Cir. 2004) (finding a commercial meaning although none was

introduced to the trial court). What is fatal is that even if

Cummins were correct, this fact would not help it. Cummins’

evidence does not suggest that its definition of “forging” is

universal, but only applies for the crankshafts at issue. However,

heading 7224, HTSUS, is general provision covering a multitude of

different products. The Court will not ascribe a different

meaning to the same provision depending on the type of product.

Cummins’ reading would require the Court to create an exception for

23

According to the Forging Handbook, trimming occurs after

forging. See American Society for Metals, Forging Handbook 153

(1985) (“Upon completion of the forging operation, flash may be

removed from a forging . . . .”).

24

Cummins has not offered testimony of wholesalers in the

United States; rather, it is only alleged that its supplier,

Krupp, has adopted this definition of “forging.” This is

inadequate to prove a commercial meaning. Cf. Witex, U.S.A.,

Inc. v. United States, 28 CIT ___, ____, 353 F. Supp. 2d 1310,

1317, 1322 (2004).

Consol. Court No. 01-00073 Page 32

its product. However, where the language does not mandate an

exception, none will be permitted. That Cummins’ requires an

exception from the general meaning of this phrase for its imports

is clear evidence that its imports do not fall under heading 7224,

HTSUS. Moreover, Cummins has failed to allege that these

“products” would be considered roughly shaped forgings in the

commercial market.

3.

Finding that (a) Cummins’ imports are blanks not included

within heading 7224, HTSUS, (b) the imports have been further

worked than roughly shaped by forging, and (c)the almost unanimous

consensus among reviewing authorities (including the architects of

the HTS) that the imports are not included under heading 7224,

HTSUS, the Court finds that the imports are not classifiable under

heading 7224, HTSUS.

B.

Next the Court considers whether the imports are classifiable

under subheading 8483.10.30, HTSUS. Subheading 8483.10.30, HTSUS,

covers “transmission shafts (including camshafts and crankshafts)

and cranks.” Customs relies on GRI 2(a), HTSUS, in arguing that

the goods were classifiable under subheading 8483.10.30, HTSUS,

upon entering Mexico. See Def.’s Mem. Supp. Cross-Mot. Summ. J. &

Consol. Court No. 01-00073 Page 33

Opp’n Pl.’s Mot. Summ. J. at 11, 26 (“Def.’s Mem.”) at 25-26. That

rule states, “[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.” GRI 2(a), HTSUS.

Specifically, Customs contends the goods had the essential

character of crankshafts upon entering Mexico “as it is uncontested

that [they were] the actual bod[ies] of the crankshaft[s], [were]

intended for use only as crankshafts, [had] the general shape[s] of

the imported crankshafts, and nothing [was] added in Mexico to the

[goods] to make them finished crankshafts.” Def.’s Mem. at 26.

The Explanatory Note to GRI 2(a), HTSUS, states,

The provisions of [GRI 2(a), HTSUS,] also 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 . . . , and which can only be used, other than in

exceptional cases, for completion into the finished

article.

Explanatory Notes at 2 (emphasis in original). Here, there is no

dispute that the goods upon importation into Mexico had the general

shape of crankshafts and were intended for use solely as

crankshafts. Agreed Stmt. Facts at para. 53. Because Plaintiff

concedes that the goods were at least blanks upon entry into Mexico

under the Explanatory Note to GRI 2(a), HTSUS, and has not shown

that the goods were provided for elsewhere in the HTSUS as blanks,

Consol. Court No. 01-00073 Page 34

Customs correctly determined that they were already classifiable

under subheading 8483.10.30, HTSUS, as unfinished crankshafts upon

entering Mexico.25

C. Conclusion

Because the goods were already classifiable under subheading

8483.10.30, HTSUS, upon entering Mexico, Customs properly

determined that the goods did not undergo a change in tariff

classification to that heading in Mexico within the meaning of

General Note 12(t)/84.243(A), HTSUS. Thus, the goods did not

qualify as goods originating in the territory of a NAFTA party.

The Court therefore grants Customs’ motion for summary judgment on

this issue.

/s/

Donald C. Pogue

Judge

Dated: May 17, 2005

New York, New York

25

Additionally, Cummins challenges Customs’ determination

that the imports cannot be labeled as originating in Mexico for

labeling purposes. See Pl.’s Mem. at 16; 19 U.S.C. § 1304.

Because the Court finds that the imports did not originate in

Mexico, the imports cannot claim Mexico as their country of

origin for marking purposes.