CLA-2 CO:R:C:M 955314 KCC
District Director
U.S. Customs Service
9400 Viscount
Suite 400
El Paso, Texas 79925
RE: Protest 2402-93-100008; backlites; automobile rear windows
with heating elements; safety glass; EN 70.07; 8708.29.00;
parts of automobiles; EN 87.08
Dear District Director:
This is in response to Protest 2402-93-100008, which pertains
to the tariff classification of backlites under the Harmonized
Tariff Schedule of the United States (HTSUS). A sample was
submitted for our examination. Arguments made at a meeting on
March 11, 1993, and additional submissions dated April 5 and 6,
1994, by counsel on behalf of the protestant were considered for
this decision.
FACTS:
The products at issue are backlites, which are tempered safety
glass with heating elements for rear windows in automobiles. The
backlites are manufactured as follows:
1) Glass is cut and washed.
2) The glass edges are ground, washed and inspected.
2) Conductive paint is silk screened onto the glass creating
black edges and the grid for the heating element.
3) The glass is heated to create tempered glass and cooled.
4) The electrical connectors are welded to the backlite; a
process that takes approximately 6 seconds.
Upon importation, the entries of the backlites were liquidated
starting on December 4, 1992, under subheading 8708.29.00, HTSUS,
as other parts and accessories of motor vehicles.
In a protest timely filed on March 3, 1993, the protestant
contends that the backlites are properly classified under
subheading 7007.11.00, HTSUS, as safety glass suitable for
incorporation into vehicles. The protestant maintains that the
backlites are essentially automobile safety glass which
incorporates a heating element. The protestant states that the
purpose of the backlite is to protect the vehicle occupants from
the elements, i.e., rain, dust, wind, etc., and allow visibility
out of the rear window. Whereas, the purpose of the heating
element is to enhance the existing visibility function of the
backlite. The protestant states that the heating element does not
add any new function, nor is its presence necessary for the
backlite to perform the function for which it was designed.
The competing subheadings are:
7007.11.00 Safety glass, consisting of toughened (tempered) or
laminated glass...Toughened (tempered) safety
glass...Of size and shape suitable for incorporation
in vehicles, aircraft, spacecraft or vessels....
8708.29.00 Parts and accessories of the motor vehicles of
headings 8701 to 8705...Other parts and accessories
of bodies (including cabs)...Other....
ISSUE:
Are the backlites classified as safety glass suitable for
incorporation in vehicles under subheading 7007.11.00, HTSUS, or
as other parts and accessories of motor vehicles under subheading
8708.29.00, HTSUS?
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 terms of the headings and any relative
section or chapter notes...."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System ENs may be utilized. The
ENs, although not dispositive, are to be used to determine the
proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989). EN 87.08 (pg.1431-1433), states
that:
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 Notes).
Parts and accessories of this heading include:...
(B) Parts of bodies and associated accessories, for
example...windows equipped with heating resistors and
electrical connectors....
The motor vehicles classifiable in headings 8701 to 8705,
HTSUS, include tractors, vehicles for the transportation of
passengers and goods, and special purpose vehicles. Therefore, as
the backlites will be assembled into a passenger motor vehicle,
they meet the first requirement of EN 87.08. The backlites also
meet the second requirement of EN 87.08, as they are not excluded
by the provisions of the Notes to Section XVII, HTSUS. Moreover,
it appears that the backlites are listed among the exemplars in EN
87.08, "windows equipped with heating resistors and electrical
connectors."
The inclusion of the reference to "windows equipped with
heating resistors and electrical connectors" in EN 87.08 was a
carry-over from the ENs to the Brussels Nomenclature and from the
Customs Cooperation Council (CCC) ENs. The reference to this
product first appeared in the ENs to the Brussels Nomenclature in
1966. The issue of where to classify a window equipped with
heating resistors and electrical connectors arose during a series
of discussions by the CCC between July 1975 and January 1976.
Beginning in July 1975, the CCC considered the question of
the proper tariff classification of "motor car rear windows, of
toughened safety glass, shaped (curved), unframed, comprising wires
acting as heating resistors buried in the glass or with surface-
printed electrical connectors and provided with electrical
connections." The question was whether such an article should be
classified under heading 7008, Harmonized Tariff Schedule (HTS)
(the predecessor to heading 7007, HTS), or heading 8706, HTS (the
predecessor to heading 8708, HTS). In deciding that the
classification was more appropriate under heading 8706, HTS, the
CCC appeared to rely on a determination that the safety glass was
incorporated into another article (the "demisting device").
As the demisting device was part of an automobile, the rear
window with demisting device was classifiable as a part of a
vehicle and excluded from classification under heading 7008, HTS,
by EN 70.08. The CCC's logic appears to be that the rear windows
with demisting devices were clearly identified by their demisting
device and by their shape, i.e. designed for motor vehicles, and
therefore, were properly classified as parts and accessories of
motor vehicles. In reconsidering this issue in October of 1975,
the CCC upheld its previous position on the additional principal
that the demisting device in the glass "panes" and the electrical
connectors were incorporated after manufacture of the pane itself
by enterprises which did not belong to the glass industry.
Unlike the demisting devices contemplated by the CCC in 1975
and 1976, the heating element in this case is not incorporated into
the glass after the glass' manufacture by a party not associated
with the glass industry. The heating element or grid is applied
to the glass by the glass maker before the glass is tempered.
Thereafter, the electrical connectors are attached in a simple
welding process which takes approximately 6 seconds.
It appears that the CCC's decision to classify the rear window
with demisting device as a part of a vehicle was based on its
determination that the safety glass was incorporated into another
article, the demisting device. That determination is not correct
for the backlites at issue. In this case, the glass is not
incorporated into the heating element. The heating element is
merely painted onto the glass and electric connectors are attached.
The heating element is a visibility enhancement of the rear glass
window.
We are mindful of EN 87.08, but believe that application of
EN 87.08 in this case is inappropriate. We are of the opinion that
the backlites are more specifically provided for under heading
7007, HTSUS, as safety glass suitable for incorporation in vehicles
than as parts and accessories of motor vehicls in heading 8708,
HTSUS.
HOLDING:
The backlites are classified under subheading 7007.11.00,
HTSUS, as safety glass suitable for incorporation in vehicles.
The protest should be GRANTED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993,
Subject: Revised Protest Directive, this decision should be
mailed, with the Customs Form 19, by your office 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 the Office of Regulations and Rulings will
take steps to make the decision available to Customs personnel via
the Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director