CLA-2 R:C:M 957203 KCC
Mr. M. Grimshaw
Columbia Shipping Inc.
945 Edgewood
Wood Dale, IL 60191
RE: Clutch facings; 6813.90.00; other friction material and articles thereof, not mounted, for clutches or the like, with a basis of other mineral substances, whether or not combined with textile or other materials; EN 68.13; with a basis of; EN 87.08; General EN (III) PARTS AND ACCESSORIES, Section XVII; NY 870329 revoked
Dear Mr. Grimshaw:
This is in regards to New York (NY) 870329 issued to you on January 27, 1992, on behalf of Valeo Friction Materials, Inc., by the Area Director, New York Seaport, which classified clutch facings under subheading 6813.90.00, Harmonized Tariff Schedule of the United States (HTSUS), as other friction material and articles thereof, not mounted, for clutches or the like, with a basis of other mineral substances, whether or not combined with textile or other materials. We have reviewed that ruling and are of the opinion that classification under subheading 6813.90.00, HTSUS, is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057 (1993), notice of the proposed revocation of NY 870329 was published on June 7, 1995, in the Customs Bulletin, Volume 29, Number 23.
FACTS:
In NY 870329, the clutch facings were described as:
The samples which you have submitted (F-290 and F-202) are discs which you state are clutch facings. You have enclosed with your request a material safety data sheet which states that the two samples are composed of almost equal amounts of glass fibers, thermosets and rubber binders, and minerals. The report also states that the samples possess a small percentage of graphite.
ISSUE:
Are the clutch facings classified under subheading 6813.90.00, HTSUS, as other friction material and articles thereof, not mounted, for clutches or the like, with a basis of other mineral substances, whether or not combined with textile or other materials?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." Subheading 6813.90.00, HTSUS, provides for:
Friction material and articles thereof (for example, sheets, rolls, strips, segments, discs, washers, pads), not mounted, for brakes, for clutches or the like, with a basis of asbestos, of other mineral substances or of cellulose, whether or not combined with textile or other materials...Other....
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 68.13 (pg. 908), states that:
Asbestos friction material is usually made by high pressure moulding of a mixture of asbestos fibres, plastics, etc.; it can also be made by compressing layers of woven or plaited asbestos which have been impregnated with plastics, pitch or rubber. It may be reinforced with brass, zinc or lead wire, or may sometimes be made up from metal wire or cotton yarn covered with asbestos. Owing to its high friction coefficient and its resistance to heat and wear, this material is used for lining brake shoes, clutch discs, etc., for vehicles of all kinds, cranes, dredgers or other machinery. The heading includes similar friction materials with a basis of other mineral materials (e.g., graphite, siliceous fossil earths) or cellulose fibre....
Classification under subheading 6813.90.00, HTSUS, was based on a broad interpretation of "with a basis of" to mean that an article only needs to contain some of the described material to be classified in this tariff provision. Therefore, since the clutch facings contained small percentages of graphite and almost equal amounts of glass fibers, thermosets, rubber binders and minerals, they were determined to have a "basis of other mineral substances,", i.e., graphite and other mineral substances. We are of the opinion that this interpretation of "with a basis of" is too broad.
"Basis" is not defined in the HTSUS or ENs. In the absence of any guidance in the Explanatory Notes, it is proper to use the principal that tariff terms are construed in accordance with their common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). "Basis" has been defined as follows:
The main constituent, fundamental ingredient. The Compact Edition of the Oxford English Dictionary (1987), pg. 173.
[T]he principal component parts of a thing. Black's Law Dictionary (1990), pg. 151.
The chief component or fundamental ingredient. Webster's II New Riverside University Dictionary (1988), pg. 156.
[T]he principal component of something. Webster's Ninth New Collegiate Dictionary (1983), pg. 134.
Based on the definitions of "basis" and a reading of both heading 6813, HTSUS, and EN 68.13 we believe that the phrase "with a basis of" as found in the article description to heading 6813, HTSUS, requires that asbestos, cellulose or other mineral substance identified in that article description be the principal or fundamental substance in the article. In this case, graphite and other mineral substances account for only a small percentage of the clutch facings. The mineral substances are not the principal or fundamental substance of the clutch facings and, therefore, classification under subheading 6813.90.00, HTSUS, is incorrect.
We are of the opinion that the clutch facings are classified under subheading 8708.93.75, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705, clutches and parts thereof, for other vehicles. EN 87.08 (pgs. 1432-1433) states that:
This headings covers parts and accessories of motor vehicles of headings 87.01 to 87.05, provided the parts and accessories fulfil both the following conditions:
(i) They must be identifiable as being suitable for use solely or principally with the above-mentioned vehicles;
and (ii) They must not be excluded by the provisions of Notes to Section XVII (see the corresponding General Explanatory Note).
General EN (III) PARTS AND ACCESSORIES, Section XVII (pgs. 1410-1412) states that:
It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:
(i) They must not be excluded by the terms of Note 2 to this Section....
and (ii) They must be suitable for use solely or principally with the articles of Chapters 86 to 88....
and (iii) They must not be more specifically included elsewhere in the Nomenclature...
The clutch facings are not excluded by Note 2, Section XVII, HTSUS, and are dedicated and used as parts of motor vehicles of headings 8701 to 8705, HTSUS. Moreover, the clutch facings are not more specifically provided for elsewhere in the HTSUS. As previously stated, the clutch facings are not classifiable under subheading 6813.90.00, HTSUS. Based on the available information, the clutch facings are classified under subheading 8708.93.75, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705, clutches and parts thereof, for other vehicles.
HOLDING:
The clutch facings, F-290 and F-202, are classified under subheading 8708.93.75, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705, clutches and parts thereof, for other vehicles. The corresponding duty rate for articles classified under this provision is 3 percent ad valorem.
NY 870329 is hereby revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division