CLA-2:OT:RR:CTF:TCM H173197 HvB
U.S. Customs and Border Protection
Port of Cleveland
6747 Engle Road Middleburg Heights, OH 44130
Attn: Paul Jakobsky
RE: Application for Further Review; Protest No. 4192-11-100001; Tariff classification of fabric curtains for airplanes
Dear Port Director:
This letter is in response to your memorandum forwarding Protest 4192-11-100001 and Application for Further Review (“AFR”), filed by counsel on behalf of “Protestant” (or importer) on December 27, 2010, against U.S. Customs and Border Protection’s (“CBP”) liquidation of sixty-nine (“69”) entries of fabric curtains used in the cabin area of airplanes. On August 23, 2012, members of my staff conducted a teleconference with the Protestant and counsel. In reaching our decision, we have taken into account arguments presented during that meeting and in counsel’s supplemental submission of August 30, 2012, inasmuch as they address the instant protest.
FACTS:
The merchandise consists of woven fabric curtains that the protestant states are specially designed for various models of civil aircraft. The curtains are sized and shaped to fit specific aircraft and locations on those aircraft. Counsel submits that the curtains are used as dividers on aircraft to separate seating classes within the plane, divide the galley area from passenger areas, provide sound dampening for crew rest areas, provide privacy for handicap lavatories, and for other similar uses. The curtains are imported with the mounting hardware.
Between September 2, 2009 and June 2, 2010, the Protestant entered the curtains under subheading 6303.99.0060, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: “Curtains (including drapes) and interior blinds; curtain or bed valances.” The entry documents describe the shipments in question as “curtain kits.” For the entries in question, the importer made a claim for duty-free treatment under the North American Free Trade Agreement (“NAFTA”), averring that the fabric used to manufacture the curtains was of Canadian origin. The invoices describe the articles in question as “Curtain Kit… 100% Wool….Made in Ontario, Canada.” On February 22, 2011, CBP requested information to verify the country of origin claim. Since the fabric did not qualify for NAFTA treatment per General Note 12 of the HTSUS, CBP issued a Notice of Action (CBP Form 29), issuing a rate advance and notifying the importer that the entries did not qualify for NAFTA treatment for the entries in question in June, July, and August of 2010. Accordingly, on July 2, July 16, and September 10, 2010, the merchandise was liquidated as entered at an 11.3% duty rate ad valorem.
Protest 4192-11-100001 was timely filed on December 27, 2010, with the Port of Toledo. On February 15, 2011, the AFR was denied. On April 15, 2011, counsel filed a petition pursuant to 19 U.S.C. §1515(c) to set aside this denial on behalf of the importer. Pursuant to 19 U.S.C. §1515(c), we set aside the denial of the AFR and voided the denial of the protest on May 18, 2011, in order to clarify the specific issue of whether curtains are classifiable as “parts” under the HTSUS.
ISSUE
Whether the instant curtains are properly classified as “curtains” in heading 6303, HTSUS, or as “parts” of “other aircraft” in heading 8803, HTSUS?
LAW AND ANALYSIS
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a). The protest was timely filed, within 180 days of liquidation for all involved entries (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §2103(2)(B) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4192-11-100001 was accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of fact or law which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Specifically, Protestant requests clarification on the specific issue of whether curtains can be classified as airplane parts.
It has been brought to our attention that more recently, Protestant filed protests on other merchandise, specifically Protest No. 4192-11-100008, Protest No. 4105-12-100003 and Protest No. 3901-12-100272. Counsel has informed us that these protests concern “strongback assembly curtains” and, requests that the aforementioned protests be included in our decision on the instant protest, which concerns 69 entries of curtains described above. Counsel provided us with samples of the strongback assembly curtains, and discussed these articles during our conference. In anticipation of our August 23, 2012 meeting, counsel has informed us that these three protests reference the instant protest. However, the strongback assembly curtains were not part of the instant lead protest and are of different material, use and character than the instant curtains. As such, you are instructed to dispose of the aforementioned protests pertaining to the strongback curtains independently of the instant matter. If further review was requested, then the AFRs should be considered in light of the foregoing analysis, and granted to the extent that the answers to the questions raised by the protest are not answered herein.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The 2009 HTSUS headings under consideration are:
6303 Curtains (including drapes) and interior blinds; curtain or bed valances:
8803 Parts of goods of heading 8801 or 8803
Additional U.S. Rules of Interpretation provides, as follows:
In the absence of special language or context which otherwise requires—
* * *
(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory[.]
Note 3 to Section XVII, HTSUS, which includes heading 8803, HTSUS, provides:
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.
Accordingly, pursuant to Note 3 to Section XVII, if the curtains are classifiable as parts in heading 8803, HTSUS, and are suitable for use solely or principally with aircraft, they are not classifiable as curtains in heading 6303, HTSUS.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding and, therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the Harmonized System. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The ENs to Section XVII (which includes Chapter 88) provides, in pertinent part:
(III) Parts and Accessories
* * *
It should be noted, however, that these headings apply only to those parts or accessories which comply with all three of the following conditions:
They must not be excluded by the terms of Note 2 to this Section, and
They must be suitable for solely or principally with the articles of Chapters 86 to 88, and
They must not be more specifically included elsewhere in the Nomenclature.
The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd. P’ship. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
More recently, the Court of International Trade applied the Willoughby and Pompeo tests when it addressed the issue of whether two vase-shaped glass structures were classifiable as glassware in heading 7013, HTSUS, or as parts of lamps in heading 9405, HTSUS. Pomeroy Collection, Ltd., v. United States, 783 F. Supp. 2d 1257, No. 11-78 (Ct. Int’l Trade 2011). In applying Willoughby to the first article, the court ruled that “[w]hen imported, the claimed article is dedicated solely for use in such article, and, when applied to that use, the claimed part meets the Willoughby test.” Ibid, at 1261-1262. In Pomeroy, the court found that first article satisfied the Willoughby test because the hurricane lamp “clearly could not function without the first article in question” since the lamp relied upon the glass structure to hang upon. Id. at 1262. The court found that the second glass structure satisfied Pompeo because the evidence showed that the glass structure contained the flame and enabled the candles to remain lit and to prevent open flames. Thus, the court also found that the second article at issue also satisfied the Willoughby precedent because “when applied to that use” the lamp could not function without the glass structures. Id. In other words, to satisfy the Pompeo test, two prongs must be satisfied: (1) the article must be solely dedicated for use with the product it claimed to be a part of and, (2) when applied to that use, the article cannot function without the article at issue.
In this instance, the protestant submits that the curtains in question are dedicated solely for use with civil aircraft. We agree with counsel that the articles are used with aircraft, based upon counsel’s submission of documentation, including photographs and drawings which substantiate the fact that the curtains are designed and manufactured according to the aircraft manufacturer’s specifications. The first prong has therefore been satisfied.
The second prong requires a determination as to whether the airplanes can function in their intended manner without the curtains, once the curtains are installed and mounted into the aircraft. The subject curtains augment the flight experience by assisting airline personnel in maintaining physical separation between seating classes. The curtains therefore potentially meet the terms of an “accessory” under the HTSUS. See, e.g., Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352-1354 (Fed. Cir. 2002).
However, as noted above, under either the Willoughby or Pompeo tests, an article is not a part “if it is a distinct and commercial entity.” Bauherin, 110 F. 3d at 779. The airplane curtains do not lose their distinct commercial identity once installed into the airplanes. In Pompeo, the court cautioned “it is unrealistic to determine the nature of the superchargers apart from their undisputed ultimate use.” Pompeo, 43 C.C.P.A. 9 at 11. Consistent with this analysis, the subject curtains remain curtains once installed in the aircraft. We note that the curtains are used as class dividers and to provide privacy in certain areas. Moreover, unlike the superchargers in question in Pompeo, the curtains once installed, still have no effect on the airplane’s ability to function. Id. at 13. Thus, the second prong of Pompeo has not been met because the curtains are not integral to the operation of the planes, since the subject articles function as accessories, not parts.
In its supplemental submission, counsel cites to four rulings to argue that the subject curtains are classifiable as parts. Counsel analogizes to HQ H112616, dated November 1, 2010, in which we classified automotive glass windows, sunroofs, and windshields in heading 8708, HTSUS, as parts of motor vehicles of headings 8701 to 8705” pursuant to Note 3 to Section XVII. Unlike the instant articles, the glass articles were not “separate and distinct commercial entities.” Ibid.
In support of its argument that the curtains are parts of civil aircraft, counsel cites to several rulings which classify articles of heading 8803, HTSUS. Notwithstanding the fact that those rulings do not reflect the current legal framework concerning parts, these rulings are distinguishable. In HQ 953562, dated October 7, 1993, we found that prefabricated lavatory modules were classifiable as parts of aircraft in heading 8803, HTSUS. There, we took into consideration the fact that toilet units and sanitary ware were specifically listed in “The Agreement on Trade in Civil Aircraft” which was promulgated in the Trade Agreements of 1979, and which is reflected in General Note 6 to the HTSUS. We do not find this ruling persuasive since The Civil Aircraft Agreement does not provide for fabric curtain kits, and curtains are attached to the airplane structure, and easily removable, unlike lavatory modules, which are mounted into the airplane structure. See 1986 ITC LEXIS 312 at 269-286. In HQ 957165, dated November 28, 1994, we classified airplane galleys in heading 8803, HTSUS. Counsel also cites to language from Beacon Cycle & Supply Co., Inc. v. United States, 81 Cust. Ct. 46, 51-52 (1978), which concerned the classification of radio-headlights for bicycles. We do not find this citation persuasive because although the court classified the radio-headlight as “Other parts of bicycles”, the court in fact described it as an “accessory because a bicycle may be used without it in the performance of its primary function, that is, the transportation of passengers.” Ibid, at 50-51. Although the curtains may “contribute to the safe and efficient operation” of the aircraft, this factor is not determinative in deciding whether an article is classifiable as a part. In HQ 963663, dated July 30, 2001, we modified HQ H956998 to reclassify aluminum rails latches, and drawers in heading 8803, HTSUS, as parts of aircraft galleys. We found that because the aircraft galley is a complete structural entity of the plane and is permanently mounted, that the latches, drawers and latches were parts. The curtain kits may be mounted on a plane, but they are not part of the permanent fuselage of the aircraft, and are therefore do not resemble the products at issue in either HQ 963663, HQ 953562, or HQ 957165.
Counsel argues that commercial aircraft “are not flown without curtains” and “they serve important safety purposes”, namely because the curtains must meet the FAA’s test flammability requirements for textiles under 14 CFR Part 25. Counsel also states that the aircraft manufacturer considers the subject articles to be “integral parts” and issues “Aircraft on Ground” notices to airplanes, pending installation of the curtains at issue. Internal corporate procedures or other agency regulations are not controlling for classification purposes. Notwithstanding the fact that these citations do not substantiate counsel’s point, “[i]t is well established that statutes, regulations and administrative interpretations relating to "other than tariff purposes" are not determinative of customs classification disputes.” Amersham Corp. v. United States, 5 C.I.T. 49, 55-56 (Ct. Int'l Trade 1983). In addition, as the Court of International Trade observed in Nobelpharma USA v. United States: “However, to repeat what the court in Willoughby held, the mere fact that two articles are designed and constructed to be used together does not necessarily make either a part of the other.” Nobelpharma U.S.A. Inc. v. United States, 955 F. Supp. 1481 (Ct. Int’l Trade 1997), citing Willoughby Camera Stores, Inc. v. United States, at 21 C.C.P.A. 332 at 29 (1933). We also note our adherence to this principle in HQ H140755, dated June 1, 2011, in which we determined among other factors, that billiards fabric constituted parts under the HTSUS because it was essential to the use of a pool table. Instead, counsel has not shown nor it is apparent how curtains are essential to the operation of airplanes.
Counsel submits that the curtains are similar to examples of EN 88.03, e.g., fuselages, panels, and partitions. The cited examples are constituent parts of the airplane body, and counsel does not sufficiently demonstrate how curtains are substantially similar to the examples provided in the EN. We therefore do not find this argument persuasive.
Counsel also avers that the fabric curtains are parts of aircraft because textiles are not expressly excluded by Note 2, Section XVII, which provides a list of articles that are not classifiable as parts. We do not find this argument compelling since as explained above, the articles do not meet the terms of the heading 8803, i.e., they are more akin to accessories; they are not parts. Therefore, we need not address the applicability of ENs for Section XVII to the article at issue. Accordingly, we find that the instant products are precluded from classification in heading 8803, HTSUS.
Under Additional U.S. Rule of Interpretation (“AUSRI”) 1(c), a provision for “parts and accessories” shall not prevail over a specific provision for such part or accessory. Thus, assuming arguendo that the subject curtains are “parts,” by application of AUSRI 1(c), the subject merchandise are not classifiable as parts of goods of heading 8803, HTSUS, because heading 6303, HTSUS, constitutes a specific provision.
In arguing that AUSRI 1(c) is inapplicable, counsel argues that heading 6303 does not describe the goods. Heading 6303, HTSUS, provides for “curtains (including drapes) and interior blinds; curtains or bed valances.” In their supplemental submission, counsel concedes that Protestant’s customers uses the term “curtains” to describe the article, as indicated on the invoices and specifications submitted by counsel. Yet, counsel argues that the subject articles are not classifiable as curtains because they have airplane specific purposes, and are used differently than household curtains. We are not persuaded by this argument. Notwithstanding the curtains are used to provide privacy and separate seating classes in the interior of the aircraft, we note that heading 6303 is eo nomine provision, and thus the use of the article should not be read into an eo nomine provision, unless the name inherently suggest a type of use. See Carl Zeiss v. United States, 195 F. 3d 1375, 1379 (Fed. Cir. 1999). Hence, the ENs to heading 6303 list interior blinds for railway carriages, which are similar to the product at issue. This decision is consistent with HQ 086702, dated May 15, 1990, in which we classified mini-textile blinds for recreational vehicles in heading 6303, HTSUS.
In conclusion, we find that fabric curtains are excluded by heading 8803, HTSUS because they do not constitute parts under the HTSUS. The articles are eo nomine described by heading 6303, HTSUS. Therefore, we find that the articles are classifiable in heading 6303, HTSUS. The 2009 HTSUS rate of duty is 11.3% ad valorem.
HOLDING
By application of GRI 1, the aircraft curtains are classified in heading 6303, HTSUS, and specifically in subheading 6303.99.0060, HTSUS (2009), which provides for “Curtains (including drapes) and interior blinds; curtain or bed valances: Other: Of Other textile materials.”
The protest should be DENIED. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division