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.