OT:RR:CTF:FTM H260066 PJG
Mr. Mark Sommer
2 Poppytrail
Rolling Hills, CA 90274
RE: Revocation of NY 864763, NY 866826, and HQ 088040; tariff classification of textile car covers
Dear Mr. Sommer:
On July 8, 1991, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) 864763. It concerned the tariff classification of a car cover under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have reconsidered
NY 864763 and found it to be in error.
CBP is also revoking NY 866826, dated September 20, 1991, which involved the classification of three automobile covers in heading 8708, HTSUS. The ruling is being revoked with regard to the non-woven polypropylene car cover and the non-woven polyester/nylon car cover. We are revoking the classification of the vinyl car cover in a separate revocation ruling.
Finally, CBP is revoking HQ 088040, dated January 16, 1991, which concerned the classification of an automobile sun protection system, which permanently mounted to the vehicle, and was imported with its hardware for installation.
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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on May 15, 2019, in Volume 53, Number 15, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY 864763, the subject car cover was described as follows:
The imported product is a car cover made primarily of nylon material, with elastic straps and a leather piece. You indicate that the cover is specifically designed and fitted to cover the windows and roof area of a Chevrolet Corvette automobile. The cover is affixed to the automobile by means of the elastic straps with VELCRO fasteners.
In NY 864763, CBP classified the subject merchandise in heading 8708, HTSUS, and specifically under subheading 8708.99.5085, HTSUSA, which provided for “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories: Other: Other: Other.”
In HQ 088040, the automobile sun protection system called the “Car-Shadow” was described as follows:
a weather protection system for automobiles, vans, and trucks. The apparatus is permanently mounted to the vehicle. The inquirer states that the product is suited to those areas of the country that are subject to extreme heat caused by the hot, bright sun. It is stated that the Car-Shadow can reduce interior heat in a vehicle by as much as 30 degrees Celsius (54 degrees Fahrenheit). It also helps protect the upholstery from fading, keeps the steering wheel from getting hot, and lessens the chances of dashboard cracking due to the continual exposure to heat buildup in the vehicle. In cold climates the Car-Shadow prevents ice and frost on the car.
The Car-Shadow operates as a roller shade which is integrated into a rear spoiler. When needed to reduce interior heat the cover is pulled over the parked vehicle and fastened to the hood of the vehicle by means of a clasp. The shade covers the roof, front, rear, and side windows of the automobile. It is available in different sizes and will fit most models of automobiles. The Car-Shadow is imported with its hardware (two mounting plates with fastening screws, nuts, washers, wrench and hex wrench). Installation instructions indicate that the mounting plates are positioned on the trunk lid and the Car-Shadow housing (with the cover positioned over a roller mechanism) is mounted on the outer surface of the trunk.
ISSUE:
Whether the subject car covers are classifiable in heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns,” or under heading 8708, HTSUS, which provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705.”
LAW AND ANALYSIS:
Classification determinations under the Harmonized Tariff Schedule of the United States (“HTSUS”) are 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.
GRI 2(b) provides as follows:
Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
GRI 3(b) provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The 2019 HTSUS provisions under consideration are as follows:
6307 Other made up articles, including dress patterns:
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Note 3 to Section XVII states as follows:
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.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
ENs (XII) to GRI 2(b) states:
(XII) It does not, however, widen the heading so as to cover goods which cannot be regarded, as required under Rule 1, as answering the description in the heading; this occurs where the addition of another material or substance deprives the goods of the character of goods of the kind mentioned in the heading.
EN to Section XVII states, in pertinent part:
* * *
(III) PARTS AND ACCESSORIES
* * *
It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:
(a) They must not be excluded by the terms of Note 2 to this Section (see paragraph (A) below).
and (b) They must be suitable for use solely or principally with the articles of Chapters 86 to 88 (see paragraph (B) below).
and (c) They must not be more specifically included elsewhere in the Nomenclature (see paragraph (C) below).
* * *
EN to 63.06 states, in pertinent part:
This heading covers a range of textile articles usually made from strong, close woven canvas.
(1) Tarpaulins. These are used to protect goods stored in the open or loaded on ships, wagons, lorries, etc., against bad weather. They are generally made of coated or uncoated man made fibre fabrics, or heavy to fairly heavy canvas (of hemp, jute, flax or cotton). They are waterproof. Those made of canvas are usually rendered waterproof or rotproof by treatment with tar or chemicals. Tarpaulins are generally in the form of rectangular sheets, hemmed along the sides, and may be fitted with eyelets, cords, straps, etc. Tarpaulins which are specially shaped (e.g., for covering hayricks, decks of small vessels, lorries, etc.) also fall in this heading provided they are flat.
Tarpaulins should not be confused with loose covers for motor cars, machines, etc., made of tarpaulin material to the shape of these articles, nor with flat protective sheets of lightweight material made up in a similar manner to tarpaulins (heading 63.07).
EN to 63.07 states, in pertinent part:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XVI or elsewhere in the Nomenclature.
It includes, in particular:
* * *
(7) Loose covers for motor–cars, machines, suitcases, tennis rackets, etc.
* * *
EN to 87.08 states, in pertinent part:
This heading covers parts and accessories of the 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 the Notes to Section XVII (see the corresponding General Explanatory Note).
Parts and accessories of this heading include :
(A) Assembled motor vehicle chassis frames (whether or not fitted with wheels but without engines) and parts thereof (side members, braces, cross members; suspension mountings; supports and brackets for the coachwork, engine, running boards, battery or fuel tanks, etc.).
(B) Parts of bodies and associated accessories, for example, floor boards, sides, front or rear panels, luggage compartments, etc.; doors and parts thereof; bonnets (hoods); framed windows, windows equipped with heating resistors and electrical connectors, window frames; running boards; wings (fenders), mudguards; dashboards; radiator cowlings; number plate brackets; bumpers and over riders; steering column brackets; exterior luggage racks; visors; non electric heating and defrosting appliances which use the heat produced by the engine of the vehicle; safety seat belts designed to be permanently fixed into motor vehicles for the protection of persons; floor mats (other than of textile material or unhardened vulcanised rubber), etc. Assemblies (including unit construction chassis bodies) not yet having the character of incomplete bodies, e.g., not yet fitted with doors, wings (fenders), bonnets (hoods) and rear compartment covers, etc., are classified in this heading and not in heading 87.07.
(C) Clutches (cone, plate, hydraulic, automatic, etc., but not the electro magnetic clutches of heading 85.05), clutch casings, plates and levers, and mounted linings.
(D) Gear boxes (transmissions) of all types (mechanical, overdrive, preselector, electro mechanical, automatic, etc.); torque converters; gear box (transmission) casings; shafts (other than internal parts of engines or motors); gear pinions; direct drive dog clutches and selector rods, etc.
(E) Drive-axles, with differential; non-driving axles (front or rear); casings for differentials; sun and planet gear pinions; hubs, stub-axles (axle journals), stub-axle brackets.
(F) Other transmission parts and components (for example, propeller shafts, half shafts; gears, gearing; plain shaft bearings; reduction gear assemblies; universal joints). But the heading excludes internal parts of engines, such as connecting rods, push rods and valvelifters of heading 84.09 and crank shafts, cam shafts and flywheels of heading 84.83.
(G) Steering gear parts (for example, steering column tubes, steering track rods and levers, steering knuckle tie rods; casings; racks and pinions; servo steering mechanisms).
(H) Brakes (shoe, segment, disc, etc.) and parts thereof (plates, drums, cylinders, mounted linings, oil reservoirs for hydraulic brakes, etc.); servo brakes and parts thereof.
(IJ) Suspension shock absorbers (friction, hydraulic, etc.) and other suspension parts (other than springs), torsion bars.
(K) Road wheels (pressed steel, wire spoked, etc.), whether or not fitted with tyres; tracks and sets of wheels for tracked vehicles; rims, discs, hub caps and spokes.
(L) Control equipment, for example, steering wheels, steering columns and steering boxes, steering wheel axles; gear change and hand brake levers; accelerator, brake and clutch pedals; connecting rods for brakes, clutches.
(M) Radiators, silencers (mufflers) and exhaust pipes, fuel tanks, etc.
(N) Clutch cables, brakes cables, accelerator cables and similar cables, consisting of a flexible outer casing and a moveable inner cable. They are presented cut to length and equipped with end fittings.
(O) Safety airbags of all types with inflater system (e.g., driver-side airbags, passenger-side airbags, airbags to be installed in door panels for side-impact protection or airbags to be installed in the ceiling of the vehicle for extra protection for the head) and parts thereof. The inflater systems include the igniter and propellant in a container that directs the expansion of gas into the airbag. The heading excludes remote sensors or electronic controllers, as they are not considered to be parts of the inflater system.
* * *
In Bauerhin Techs. Ltd. P’ship. v. United States, 110 F.3d 774 (Fed. Cir. 1997), the court identified two distinct lines of cases defining the word “part.” Consistent with United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933) (citations omitted), one line of cases holds that a part of an article “is something necessary to the completion of that article. . . . [W]ithout which the article to which it is to be joined, could not function as such article.” The other line of cases evolved from United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it. The definition of “parts” was also discussed in Rollerblade, Inc. v. United States, 282 F.3d 1349, 1353 (Fed. Cir. 2002), wherein the United States Court of Appeals for the Federal Circuit (“CAFC”) defined parts as “an essential element or constituent; integral portion which can be separated, replaced, etc.” Id. at 1353 (citing Webster's New World Dictionary 984 (3d College Ed. 1988). This line of reasoning has been applied in previous CBP rulings. See e.g., HQ H255093 (Jan. 14, 2015); HQ H238494 (June 26, 2014); HQ H027028 (Aug. 19, 2008).
Insofar as the term “accessory” is concerned, the Court of International Trade (“CIT”) has previously referred to the common meaning of the term because the term is not defined by the HTSUS or its legislative history. See Rollerblade, Inc. v. United States, 24 Ct. Int’l Trade 812, 815-819 (2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)). We also employ the common and commercial meanings of the term “accessory”, as the CIT did in Rollerblade, Inc., wherein the court derived from various dictionaries “that an accessory must relate directly to the thing accessorized.” See Rollerblade, Inc., 24 Ct. Int’l Trade at 817. In Rollerblade, Inc., the CAFC noted that “an ‘accessory’ must bear a direct relationship to the primary article that it accessorizes.” 282 F.3d at 1352 (holding that inline roller skating protective gear is not an accessory because it “does not directly act on” or “contact” the roller skates). In support of its finding that the protective gear was not an accessory to roller skates, the CAFC also noted that the “protective gear does not directly affect the skates’ operation.” Id. at 1353.
The subject merchandise in this case is not a “part” under any of the tests provided in the judicial decisions described above. It is not a “part” under the Willoughby test because a car can function without the instant cover. It is also not a “part” under the Pompeo test because firstly, it is secured onto the car using its elastic straps with VELCRO fasteners, which likely would not constitute being “installed”, but also because even if it were considered “installed”, the car can still operate without the cover. See also Rollerblade, Inc., 282 F.3d at 1353 (the CAFC found that the protective gear was not a part to the roller skates because they did not “attach to or contact” the roller skates, they were “not necessary to make the skates … work”, nor were “they necessary to make the skates … work efficiently or safely.”) In any case, the subject merchandise is not a “part” because it is not essential, constituent or integral to the vehicle. See id.
The subject merchandise is also not an “accessory” of motor vehicles. Like the protective gear in Rollerblade, Inc. and the truck tents classified in HQ H242603 (April 3, 2015), the car cover at issue does not directly affect the car’s operation nor does it contribute to the car’s effectiveness. See Rollerblade, Inc., 282 F.3d at 1353; HQ 960950 (Jan. 16, 1998) (stating that “[a]ccessories are of secondary importance,” but must “somehow contribute to the effectiveness of the principal article”). Instead, the instant car cover provides protection to a car when it is not in use. In fact, like the truck tents in HQ H242603, in order for the car cover to be usable thereon, the car must be parked. Also, like the truck tents in HQ H242603 (April 3, 2015), the car cover does not contribute to the car’s safe and efficient use.
Although the subject car cover is sometimes in contact with the car (unlike the protective gear in Rollerblade, Inc., which was never in contact with roller skates), the car cover is not in contact with the car while the car is in use. In this regard, we note that the exemplars of parts and accessories provided in EN 87.08, such as mudguards, exterior luggage racks, number-plate brackets, and floor mats, stay on the motor vehicle when it is in use and when it not in use. Therefore, the car cover is neither a part nor an accessory because unlike the exemplars in the EN and unlike the articles in Rollerblade, it is in contact with the car only when the car is not in use and consequently cannot bear a direct relationship to the operation of the car. Since the subject merchandise is neither a “part” nor an “accessory” we need not consider General Explanatory Note (III) to Section XVII or the remainder of EN 87.08.
In HQ 953273, dated February 16, 1993, CBP cited to HQ 087596, dated January 31, 1991, wherein CBP distinguished between “loose” and fitted motor vehicle covers and classified fitted motor vehicle covers as parts and accessories for motor vehicles. In HQ 953273, CBP determined on the basis of EN 63.06, that “there is no reason to distinguish between ‘loose’ motor vehicle covers and fitted covers” and that “the authors of the Harmonized Commodity Description and Coding System did not intend for motor vehicle covers to be classified as parts and accessories for motor vehicles. Instead, automobile covers must be viewed as items related to tarpaulins.” CBP proceeded to note that motor vehicle covers are not classifiable as tarpaulins because they are not flat, but “this fact does not transform the covers into parts and accessories. Rather, they are to be classified as other made up textile articles not more particularly described in the Nomenclature under heading 6307.” Ultimately, CBP classified the subject motor vehicle covers under subheading 6307.90.9986, HTSUS, which provided for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” This same reasoning was used in HQ 953272 and HQ 953274, both dated February 16, 1993.
In NY 864763, we stated that the subject merchandise is made primarily of nylon material, with elastic straps and VELCRO fasteners, and a leather piece. After applying GRI 2(b) and EN (XII) to GRI 2(b), we do not find that the existence of the elastic straps with VELCRO fasteners and the leather piece preclude the merchandise from being considered a made up article of textile material under heading 6307, HTSUS, because the article itself, the car cover, is composed of textile fabric, and the elastic straps with VELCRO fasteners, and presumably, the leather piece, are used to secure the car cover to the car, and do not deprive the article of the character of a textile article.
In accordance with the reasoning in HQ 953272, HQ 953273, and HQ 953274, we find that the subject merchandise is classified in heading 6307, HTSUS, specifically under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
We are also revoking NY 866826, which involved the classification of three automobile covers in heading 8708, HTSUS. The ruling is being revoked with regard to the non-woven polypropylene car cover and the non-woven polyester/nylon car cover. We are revoking the classification of the vinyl car cover in a separate revocation ruling. The non-woven polypropylene car cover and the non-woven polyester/nylon car cover are both made up articles of textile material and are properly classified in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
Finally, we are revoking HQ 088040 because the sun protection system, which was classified under heading 8708, HTSUS, is neither a part nor an accessory. Specifically, the sun protection system is not a part under Willoughby or Pompeo because it is not “necessary to the completion” of the car and the car can still function without it. See Willoughby, 21 C.C.P.A. at 324; Pompeo, 43 C.C.P.A. at 14. Finally, it is not a part under Rollerblade, because it is not “an essential element or constituent” of the car, nor is it an “integral portion” of the car, as it is not necessary to the operation of the car nor does it impact its ability to function. See 282 F.3d at 1353. Although the sun protection system is in direct contact with the car when it is mounted, the sun protection system is not an accessory because it does not directly affect the car’s operation. See id. Moreover, unlike the exemplars provided in EN 87.08, the sun protection system is only meant to be used when the car is not in use. Accordingly, the sun protection system in HQ 088040 is not classifiable under heading 8708, HTSUS, as a part or accessory of motor vehicles. In accordance with the reasoning in HQ 953272, HQ 953273, and HQ 953274, we find that the sun protection system is classified in heading 6307, HTSUS, specifically under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
However, HQ 088040 states that the sun protection system is imported together with its hardware (two mounting plates with fastening screws, nuts, washers, wrench and hex wrench) for installation and these articles are classifiable under more than one heading so we must consider GRI 3 for the classification of this merchandise. GRI 3(b) addresses the classification of goods put up in sets for retail sale and it states that retail sets shall be classified as if they consisted of the component which gives them their essential character. EN(X) to GRI 3(b) states the following:
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
Applying the definition of the phrase “goods put up in sets for retail sale” provided in EN(X) to GRI 3(b), the sun protection system and its accompanying hardware meet the first requirement because they consist of at least two different articles that are prima facie classifiable in different headings of the HTSUS. The products also meet the second requirement because the hardware is provided together with the sun protection system in order to facilitate the mounting of the sun protection system onto a car. Finally, HQ 088040 does not provide any reason to believe that the sun protection system and its hardware will need to be repacked. Therefore, the sun protection system and its hardware are “goods put up in sets for retail sale,” which must be classified using GRI 3(b).
EN GRI 3(b) (VIII) lists factors to help determine the essential character of such goods, specifically: “the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” The U.S. Court of International Trade has indicated that the factors listed in EN GRI 3(b) (VIII) are “instructive” but “not exhaustive” and has indicated that the goods must be “‘reviewed as a whole.’” The Home Depot, U.S.A., Inc. v. United States, 30 Ct. Int’l Trade 445, 459-460 (2006) (citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 384 (1971) (citation omitted)). With regard to the good which imparts the essential character, the court has stated that it is “‘that which is indispensable to the structure, core or condition of the article, i.e., what it is.’” Id. at 460 (citing A.N. Deringer, Inc., 66 Cust. Ct. at 383).
The bulk, weight and value of the sun protection system supersedes that of its hardware. Moreover, the sun protection system is indispensable to the core of the set because the set is designed to protect a car from extreme heat caused by the sun and to protect it from the accumulation of ice and frost. Therefore, the essential character of the sun protection system and its hardware is imparted by the sun protection system. Accordingly, by application of GRIs 3(b) and 6, the sun protection system and its hardware is properly classified under 6307.90.98, HTSUS.
HOLDING:
Under the authority of GRIs 1, 2(b), 3(b), and 6 the subject textile car covers are classified under heading 6307, HTSUS, specifically under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2019 column one, general rate of duty is 7 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 088040, dated January 16, 1991, is REVOKED.
NY 864763, dated July 8, 1991, is REVOKED.
NY 866826, dated September 20, 1991, is 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