HQ 967858
May 19 2006
CLA-2 RR:CTF:TCM 967858 KBR
Robert J. Leo
Meeks & Sheppard
330 Madison Avenue
39th Floor
New York, NY 10017
RE: Reconsideration of NY L84170; Sunglasses Automobile Visor Clips
Dear Mr. Leo:
This is in reference to your letter of August 1, 2005, on behalf of International Sourcing Group Ltd. of Cleveland Ohio, requesting reconsideration of New York Ruling Letter (NY) L84170, issued by the Customs and Border Protection (“CBP”) National Commodity Specialist Division, on May 6, 2005, concerning the classification of sunglasses automobile visor clips (“clips”), under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed NY L84170 and have determined that the classification provided is correct. You provided samples of various styles of clips for our review.
FACTS:
NY L84170 concerns the clips used to secure eyeglasses or sunglasses (“glasses”) when they are not being worn. The clip consists of a hinged plastic body with a soft foam inside that is designed to snap onto the arms of a pair of glasses to secure it when not being worn. The back of the plastic body has a bent, tensioned metal wire clip designed to attach to another surface to secure the glasses to that surface. The clips come in various styles. Some are rectangular and allow a replaceable picture to be placed under a clear plastic panel on the body. Some are “bullet” or teardrop shaped. Some are shaped in a sport motif, such as a bowling pin, three basketballs, baseball and bat, football or a golf bag. The clips measure approximately 3 inches long and 1 inch to 1 ½ inches wide.
In NY L84170, it was determined that the clip was classifiable under subheading 3926.90.9880, HTSUSA, as “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other”. You argue that the clip should be classified under subheading 8708.29.50, HTSUSA, as “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories of bodies (including cabs): Other: Other.
ISSUE:
Whether the glasses visor clip is classified as parts and accessories of motor vehicles, or as other articles of plastics, under the HTSUSA?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
In interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUSA provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.98 Other:
3926.90.9880 Other …
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Other parts and accessories of bodies (including cabs):
8708.29 Other:
8708.29.50 Other:
8708.29.5060 Other
The instant article is a type of clip. This article is used to secure glasses by placing the glasses within the clip and attaching the clip to an auto visor, waist belt, sport bag, back pack or other similar location. Identical articles are marketed simply as eyeglass/sunglass clips (not “visor” clips) and the article’s equal use in multiple locations is shown in various retailer’s advertisements. See www.shopterex.com, www.mauijim.com, www.commercialadv.com, www.branders.com, www.image-smart.com, and www.boatersworld.com.
In arguing that chapter 39 is not appropriate for classifying the glasses clip, you cite Note 2(q) to Chapter 39, which states that the chapter does not cover “[p]arts of aircraft or vehicles of section XVII”. A “part,” for tariff purposes, is an integral, constituent component of another article, necessary to the completion of the article with which it is used, and which enables that article to function in the manner for which it was designed. See HQ 961652 (January 11, 1999). However, an “accessory,” for tariff purposes, is generally not necessary to the completion of the article it is used with. Accessories are of secondary importance, not essential in and of themselves. They must, however, add to the effectiveness of the article they are used with, for example, by making that article more convenient to use or by expanding its range of uses. Id. Therefore, Note 2(q) does not apply since, at best, the glasses clip would be an “accessory”, not a “part” of a vehicle.
You argue that the glasses clip is classifiable in heading 8708, HTSUSA, as an accessory for motor vehicles. Note 3 to Section XVII, HTSUSA, states:
References in chapters 86 to 88 to “parts” or “accessories” do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those chapters. A part or accessory which answers to a description in two or more of the headings of those chapters is to be classified under that heading which corresponds to the principal use of that part or accessory.
Therefore, pursuant to Section XVII, Note 3, the glasses clips must be used solely or principally with motor vehicles to be classified in Heading 8708.
Heading 8708 is governed by “use.” Classification based upon use is governed by the language of Additional U.S. Rule of Interpretation 1(a) which requires that:
In the absence of special language or context which otherwise requires –
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use;
Although the introduction of the HTSUS changed the concept of use from chief use to principal use, it is still informative to see how courts interpreted the former statute since the wording regarding class or kind is nearly identical. In United States v. Colibri Lighters (USA), Inc., 47 CCPA 106, CAD 739 (1960), discussing the concept of chief use, the Appeals Court stated that in addition to the characteristics of the merchandise itself, classification should be based on the chief use of the articles of that class generally and not on the basis to which the individual articles should be put. In Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993), the Court found that it is the principal use of the class or kind or goods to which the imports belong at or immediately prior to the date of importation and not the principal use of the specific imports that is controlling. Moreover, in Primal Lite, Inc. v. United States, 182 F.3d 1362 (Fed Ct. Apps. 1999), the Court stated that principal use under Additional U.S. Rule of Interpretation 1(a) limits the “class or kind” language to those goods that are “commercially fungible” with the imported goods. See HQ 966147 (March 26, 2003).
The “class of good” the instant article belongs to is as a type of clip, not dissimilar to a traditional binder clip. Clips have no relation to the functioning of a motor vehicle. In HQ 082976 (March 20, 1990), CBP considered whether an article should be considered an article of plastic of chapter 39 or an accessory of motor vehicles of heading 8708 and discussed the requirements for an accessory stating:
Generally speaking, accessories are articles that are not
needed to enable the goods with which they are used to fulfill
their intended function. They must, however, somehow contribute
to the effectiveness of the principal article (e.g., facilitate
the use or handling of the principal article, widen the range of
its uses, or improve its operation). The subject bumper sticker
holder does not function in such a manner. Instead, it serves as
a platform for the expression of ideas and viewpoints. This
being the case, we need not explore the application of Heading
8708.
See also, HQ 087704, September 27, 1990.
Rollerblade, Inc. v. United States, 116 F. Supp 2d 1247 (CIT 2000), aff’d, 282 F.3d 1349 (CAFC 2002), which concerned protective gear for roller skating, held that to be an “accessory”, an article “must relate directly to the thing accessorized.” The Court of Appeals stated:
In other words, [the subheading] refers to an article (roller skates), not to an activity (roller skating). The subheading also covers parts of that article, such as wheels or laces for the skates. Thus, the subheading language specifically addresses roller skates and their parts and accessories. The language does not embrace every accessory associated with the broader activity of roller skating.
****. As the Court of International Trade found, dictionary definitions indicate that an “accessory” must bear a direct relationship to the primary article that it accessorizes. In this case, under [the subheading], the article accessorized is roller skates, not the general activity of roller skating. Moreover, as found by the trial court, the protective gear lacks a direct relationship to the roller skates. The protective gear does not directly act on the roller skates’ operation. Thus, based on the common meaning of “accessory” and the language of [the subheading], this court sustains the trial courts conclusion that Rollerblade’s imported protective gear is not a roller skate accessory.
Id at 282 F.3d 1352-53.
In HQ 967391 (November 8, 2005), CBP found that even though an article may be used in “association with” another article, it may not rise to the level of an “accessory” for it. Although one use of the instant glasses clip may be to secure the glasses to an automobile visor, it may be equally used in other locations. Therefore, we do not find that the principal use of the glasses clip is with motor vehicles.
Applying the court cases and CBP decisions cited above to the instant case, we find that the glasses clips, even though they may be used in a motor vehicle, are not the class of article that is an accessory of a motor vehicle. The glasses clips do not relate directly to the use of a motor vehicle or contribute to its effectiveness. Therefore, the glasses clips can not be classified as an accessory for motor vehicles in heading 8708, HTSUSA.
You cite several rulings involving CD holders and multiple article holders which are intended to be attached only to an automobile visor and were classified as accessories of motor vehicles in heading 8708, HTSUSA. The rulings are distinguishable from the instant glasses clips. The articles in those rulings are substantial articles made specifically to fit only an automobile visor. Further, the holders in those rulings are used to hold articles (compact disks) which are inserted into one of the automobiles components. Similarly, two other rulings you cite, NY J84526 (May 20, 2003)(involving a nylon tissue holder) and NY J87429 (July 17, 2003)(involving a nylon sunglass holder), are distinguishable in that they involve more substantial articles made to fit a visor on a specific model of vehicle.
Therefore, we find the instant glasses clips are classified in heading 3926. They are provided for under subheading 3926.90.9880, HTSUSA, as “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other: Other.” See NY J86572 (July 28, 2003)(classifying a clip-on sunglass holder in subheading 3926.90.9890, HTSUSA). See also NY A85876 (August 6, 1996) (classifying an air freshener intended to be clipped onto a automobile visor in subheading 3926.90.9890, HTSUSA).
HOLDING:
By application of GRI 1, the glasses clips are classified in heading 3926, specifically in subheading 3926.90.9880, HTSUSA, as “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other: Other.” The 2006 column one, general rate of duty rate is 5.3% ad valorum. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
EFFECT ON OTHER RULINGS:
NY L84170, dated May 6, 2005, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division