CLA-2 OT:RR:CTF:TCM H192148 CkG
Port Director
Customs and Border Protection
Port of Seattle
1000 Second Ave., Suite 2100
Seattle, WA 98104
Re: Modification of HQ 958100, HQ 959730 and Revocation of HQ 966360;
classification of certain off-the-road tires for dump trucks
Dear Port Director,
This is in reference to Headquarters Ruling Letter (HQ) 958100, issued to the Port Director in Seattle, Washington, on March 25, 1997, with regard to Protest # 3001-95-100575, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of tires for dump trucks. The articles were classified in subheading 4011.20.10, HTSUS, 4011.91, or 4011.99, HTSUS, depending on the tread pattern and use of the tires. Since the issuance of that ruling, Customs and Border Protection (CBP) has reviewed the classification of these items and has determined that the cited ruling is in error.
HQ 958100 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 958100 when notice of disposition of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).
However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. 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), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. This modification will not affect the entries which were the subject of Protest 3001-95-100575, but will be applicable to any entries of similar merchandise made 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN.
We are also revoking HQ 966360, dated June 13, 2003, and modifying HQ 959730, dated May 29, 1997, which classified similar tires for dump trucks in subheading 4011.20.10, HTSUS, as tires of a kind used on buses or trucks.
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, notice proposing to revoke HQ 966360 and to modify HQ 958100 and HQ 959730 was published on September 30, 2015, in Volume 49, Number 39, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
The articles under consideration are certain off-the-road tires for earthmover equipment described as large dump trucks. These tires are classified in accordance with the Tire and Rim Association (TRA) coding system with a TRA code that begins with the letter “E”.
In HQ 958100, off-the-road tires suitable for dump trucks and bearing the TRA codes E-1/R-5, E-3/G-18, E-3/G-44, E-3/T-331, E-4/G-18ET, E-4/G-28ET, E-4/G-36ET, E-4/T-431, E-4/T-432, E-4/T-433, E-4/T451, and E-7/D-1 were classified in subheading 4011.20.10, HTSUS. The importer claimed that the tread on these tires met the definition for "herring-bone" or similar tread tires.
In HQ 959730, Triangle brand off-the-road tires style TL-612 designed for use on earthmoving and loader equipment bearing the TRA code “E-3”, with or without another code, were classified in subheading 4011.20.10, HTSUS, if of radial construction, and in 4011.20.50, HTSUS, if of another construction. The importer claimed that the tread on these tires met the definition for “herring-bone” or similar tread tires.
In HQ 966360, Michelin Earthmover tires (part numbers 248850 and 123475) with five tread patterns including a herringbone tread, for use principally in rigid dumpers and transport vehicles, were classified in subheading 4011.20.10, HTSUS.
ISSUE:
Whether the instant tires are classified in subheading 4011.20, HTSUS, as tires “of a kind used on buses or trucks”; in subheading 4011.6, HTSUS, as “other, having a “herring-bone” or similar tread”; or in subheading 4011.9, HTSUS, as “other” tires.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
The HTSUS provisions at issue provide, in pertinent part, as follows:
4011 New pneumatic tires, of rubber
4011.20 Of a kind used on buses or trucks
4011.20.10 Radial…
. . .
Other, having a "herring-bone" or similar tread:
4011.61.00 Of a kind used on agricultural or forestry vehicles and machines
4011.62.00 Of a kind used on construction or industrial handling vehicles and
machines and having a rim size not exceeding 61 cm
4011.63.00 Of a kind used on construction or industrial handling vehicles and machines and having a rim size exceeding 61 cm
4011.69.00 Other
Other:
4011.92.00 Of a kind used on agricultural or forestry vehicles and machines
4011.93 Of a kind used on construction or industrial handling vehicles and
rim size not exceeding 61 cm
4011.93.40 Radial
4011.93.80 Other
4011.94 Of a kind used on construction or industrial handling vehicles and
machines and having a rim size exceeding 61 cm
4011.94.40 Radial
4011.94.80 Other
4011.99 Other
* * * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs 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. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 87.04 provides, in pertinent part, as follows:
This heading also covers :
(1) Dumpers, sturdily built vehicles with a tipping or bottom opening body, designed for the transport of excavated or other materials. These vehicles, which may have a rigid or articulated chassis, are generally fitted with off the road wheels and can work over soft ground. Both heavy and light dumpers are included in this group; the latter are sometimes characterised by a two way seat, two seats facing in opposite directions or by two steering wheels, to enable the vehicles to be steered with the driver facing the body for unloading.
…
Subheading Explanatory Notes.
Subheading 8704.10
These dumpers can generally be distinguished from other vehicles for the transport of goods (in particular, tipping lorries (trucks)) by the following characteristics…”
the dumper body is made of very strong steel sheets; its front part is extended over
the driver’s cab to protect the cab; the whole or part of the floor slopes upwards
towards the rear;
in some cases the driver’s cab is half width only;
lack of axle suspension;
high braking capacity;
limited speed and area of operation;
special earth moving tyres;
because of their sturdy construction the tare weight/payload ratio does not exceed
1 : 1.6;
the body may be heated by exhaust gases to prevent materials from sticking or
freezing.
It should be noted, however, that certain dumpers are specially designed for working in mines or tunnels, for example, those with a bottom opening body. These have some of the characteristics mentioned above, but do not have a cab or an extended protective front part of the body.
* * * *
Heading 40.11 provides for “New pneumatic tires, of rubber.” There is no dispute that off-the-road tires for dump trucks are classified therein. The issue arises at the six-digit subheading level.
Subheading 4011.20 provides for “New pneumatic tires, of rubber: Of a kind used on buses or trucks.” Subheadings 4011.61-4011.69 provide for “New pneumatic tires, of rubber: Other, having a "herring-bone" or similar tread,” such as tires of a kind used on agricultural or forestry vehicles and machines (4011.61) or of a kind used on construction or industrial handling vehicles (4011.62-4011.63), and others (4011.69). Finally, subheadings 4011.92-4011.99 provides for “New pneumatic tires, of rubber: Other,” (i.e., not having a herring-bone or similar tread), such as tires of a kind used on agricultural or forestry vehicles and machines (4011.92) or of a kind used on construction or industrial handling vehicles (4011.93-4011.94), and others (4011.99).
Trucks are motor vehicles for the transport of goods that are classifiable in Chapter 87. Both dumpers and lorries are trucks classifiable in heading 87.04, as motor vehicles for the transport of goods. However, we note that the EN to subheading 8704.10 draws a distinction between “dumpers” and “lorries” (trucks), stating that “These dumpers can generally be distinguished from other vehicles for the transport of goods (in particular, tipping lorries (trucks)) by the following characteristics”, such as, i.e., “special earth-moving tires.”
The CBP Informed Compliance Publication (ICP) on Classification of Tires further notes that “There are numerous machines identified as classifiable in chapter 84 that move on tires but are not trucks. These would include excavating machines of heading 8429, construction machines and snow plows of heading 8430, agricultural machines of heading 8432 and harvesting machines of heading 8433. Although they all may be designed in some instances to roll on tires, they are not trucks, but machines, and their tires would be classifiable further on in heading 4011.”
Thus, dumpers or dump-body trucks are not trucks (lorries). As such, the off-the-road tires of dumpers or dump-body trucks are not tires “of a kind used on buses or trucks” within the scope of subheading 4011.20, and said tires are not classified therein.
The EN to heading 4011 clarifies, with respect to subheadings 4011.62, 4011.63, 4011.93 and 4011.94, that for the purposes of these subheadings, the expression "construction or industrial handling machines" includes vehicles and machines used for mining. The instant tires, per the TRA code and manufacturer information, are designed for use with dumpers and dump trucks, off-road applications such as construction and mining.
The TRA Yearbook provides the following description of earthmovers:
Earthmover: transportation usually occurs over unimproved surfaces at speeds up to 40 mph and short distances, up to 2.5 miles, one way. Equipment in this category is mainly haulage trucks and scrapers.
Thus, dumper truck tires bearing a TRA code “E”, are designed primarily for off-road use over unimproved surfaces, and for short distances only. They are used in construction and mining operations. They are not of a class or kind used on trucks designed primarily for on-road use. Dumper tires with characteristics for use other than normal on road use or mixed on-road off-road use should be classified in subheading 4011.6 or 4011.9, depending on whether or not the individual tires have a herring-bone or similar tread.
CBP has concluded in prior rulings that “herring-bone” refers to a tread pattern consisting of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slant alternating row by row. These short slanted rows would meet in the center of the tire tread to form a "V" shape. See HQ 958100, dated March 25, 1997. This is supported by the Explanatory Notes (ENs) heading 40.11, in which tires classified in subheadings 4011.61-4011.69 (having a herringbone or similar tread) are pictured. All the tire treads pictured therein, except for one, have rows of short slanted parallel lines going in opposite directions with the slant alternating row by row, which stop in the center of the tire and form a "V"-like pattern. The remaining tread pattern pictured in the ENs has short slanted parallel lines with the slant alternating row by row which do not meet in the center, but instead extend below the opposite slanted line. This is not a standard herring-bone tread, but an example of a “similar” tread. The tread lugs may be one solid line from sidewall to center, individual raised ridges aligned in a herring-bone pattern, or a combination of a strip of tread and ridges forming the angled line.
The tires at issue in HQ 958100 bearing the TRA codes E-1/R-5, E-3/G-18, E-3/G-44, E-3/T-331, E-4/G-18ET, E-4/G-28ET, E-4/G-36ET, E-4/T-431, E-4/T-432, E-4/T-433, E-4/T451, and E-7/D-1, do not have a herring-bone or similar tread. They do not feature slanted parallel lines with the slant alternating row by row. These tires are thus classified in subheading 4011.93, or 4011.94, HTSUS.
The Triangle brand off-the-road tires style TL-612 at issue in HQ 959730 and the Michelin Earthmover tires (part numbers 248850 and 123475) at issue in HQ 966360 feature tread patterns with slanted, parallel rows with the slant alternating line by line. They therefore have a herringbone tread and are classified in subheadings 4011.62, or 4011.63, HTSUS.
HOLDING:
Pursuant to GRIs 1 and 6, the off-the-road tires suitable for dump trucks and bearing the TRA codes E-1/R-5, E-3/G-18, E-3/G-44, E-3/T-331, E-4/G-18ET, E-4/G-28ET, E-4/G-36ET, E-4/T-431, E-4/T-432, E-4/T-433, E-4/T451 and E-7/D-1, are classified in heading 4011, HTSUS, and if of a kind used on construction or industrial handling vehicles and machines and having a rim size not exceeding 61 cm, are classified in subheadings 4011.93.4000, HTSUS, if of radial construction or 4011.93.8000, HTSUS, if of other construction; and if of a kind used on construction or industrial handling vehicles and machines and having a rim size exceeding 61 cm, are classified in subheadings 4011.94.4000, HTSUS, if of radial construction or 4011.94.8000, HTSUS, if of other construction. The 2015 column one, general rates of duty are 4% and 3.4% ad valorem, respectively.
Pursuant to GRIs 1 and 6, the Triangle brand off-the-road tires style TL-612 and the Michelin Earthmover tires (part numbers 248850 and 123475) are classified in heading 4011, HTSUS, and as other tires having a “herring-bone” or similar tread in subheading 4011.62.0000, HTSUS, if of a kind used on construction or industrial handling vehicles and machines and having a rim size not exceeding 61cm, or in subheading 4011.63.0000, HTSUS, if of a kind used on construction or industrial handling vehicles and machines hand having a rim size exceeding 61cm. The 2015 column one, general rate of duty is Free.
EFFECT ON OTHER RULINGS:
HQ 958100, dated March 25, 1997 is hereby modified with respect to those tires bearing the TRA codes E-1/R-5, E-3/G-18, E-3/G-44, E-3/T-331, E-4/G-18ET, E-4/G-28ET, E-4/G-36ET, E-4/T-431, E-4/T-432, E-4/T-433, E-4/T451; and E-7/D-1.
HQ 959730, dated May 29, 1997, is hereby modified with respect to the Triangle brand off-the-road tires style TL-612 designed for use on earthmoving and loader equipment bearing the TRA code “E-3”, with or without another code.
HQ 966360, dated June 13, 2003, is hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc:
Ms. Margaret V. Wilson
Customs/Drawback Administrator
Michelin North America, Inc. One Parkway South P.O. Box 19001
Greenville, South Carolina 29602-9001
Port Director
U.S. Customs and Border Protection
300 South Ferry St. Terminal Island, CA 90731