CLA-2 RR:CR:TE 961653 RH
Erik D. Smithweiss
Grunfeld, Desiderio, Lebowitz & Silverman LLP
245 Park Avenue
New York, NY 10167-3397
RE: Classification of a diaphragm; heading 8708; parts of motor
vehicles;
Note 1(e) to Section XVI; Note 2(a) and (e) to Section XVII;
heading 5911
Dear Mr. Smithweiss:
This is in reply to your letters of November 3, 1997, and
September 16, 1998, on behalf of your client, ContiTech, a
division of Continental General Tire, Inc., requesting a ruling
on the classification of a diaphragm used in fuel pressure
regulators for automobiles. A member of my staff met with you on
August 26, 1998, to discuss the issues in this case.
You submitted three samples of the merchandise to aid us in our
determination.
FACTS:
The description of the merchandise in your November 3, 1997,
letter reads as follows:
The merchandise at issue is a diaphragm used in fuel
pressure regulators for automobiles. The diaphragm
regulates the pressure of fuel passing through the fuel
pressure regulator. The diaphragm is manufactured from
linen woven fabric that is spread coated on both sides with
NBR rubber. The weight of the fabric after coating is 200
g/mý. The rubber is not cellular. The fabric will then be
molded under pressure and temperature into a convoluted
shape, and die cut to size. By weight, the product is 18%
polyamide fabric, and 82% nitrile rubber. By value, the
product is 61% fabric and 39% rubber.
You seek classification of the diaphragm under subheading
8708.99.8080 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as an other part of a motor vehicle.
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ISSUE:
Is the diaphragm classifiable under heading 8708, HTSUS, as an
other part of a motor vehicle?
If not, what is its correct classification?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the harmonized system 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.
Additionally, the Explanatory Notes (EN) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.
In this case, we agree with you that the diaphragm qualifies as
an article of textile material for technical uses under heading
5911, HTSUS. You contend, however, that the diaphragm should be
classified under heading 8708, HTSUS, which provides for "Parts
and accessories of the motor vehicles of headings 8701 to 8705."
You express two reasons for this classification. First, you
claim that the diaphragm is incorporated into vehicles which will
not function properly without the diaphragm. Secondly, you state
that the diaphragm is not excluded from classification within
that heading by any relevant section or chapter notes.
Note 2 to Section XVII, HTSUS, excludes various items from
classification as parts and accessories of motor vehicles. It
reads, in part:
The expressions "parts" and "parts and accessories" do not
apply to the following articles, whether or not they are
identifiable as for the goods of this section:
(a) Joints, washers or the like of any material (classified
according to
their constituent material or in heading 8484) or other
articles of vulcanized rubber other than hard rubber
(heading 4016);
You contend that joints, gaskets and washers are all used as
seals to ensure tightness and prevent leakage, and that the
diaphragm at issue functions to regulate pressure, a role not
performed by any of the articles excluded in Note 2(a) to Section
XVII. Furthermore, you claim that the diaphragms are not
articles of vulcanized rubber, and thus are not excluded by Note
2(a), Section XVII, from classification in Chapter 87. We agree
with you on this point.
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Note 2(e) to Section XVII also excludes the following articles
from classification within that section:
Machines or apparatus of headings 8401 to 8479, or parts
thereof, articles of heading 8481 [classification of the
fuel pressure regulator in which the diaphragm is used is
under this heading] or 8482 or, provided they constitute
integral parts of engines or motors, articles of heading
8483.
You state, and we agree, that the diaphragm is not an apparatus
of heading 8401 to 8479, or a part thereof. Furthermore, you
claim that, although the fuel pressure regulator into which the
diaphragm is incorporated is classifiable in heading 8481, the
diaphragm is not a "part" of the fuel pressure regulator. To
support that position, you cite Note 1(e) to Section XVI, HTSUSA.
It states, in part, that Section XVI does not cover "articles of
textile material for technical uses (heading 5911)." Emphasis
supplied.
You further argue that Note 2(e), Section XVII, excluding
articles of heading 8481 from classification within that section,
is not applicable to the diagphragm since it is an article of
textile material for technical uses in heading 5911 and not a
part of an article of heading 8481, based on Note 1(e) to Section
XVI. In addition, you submit that because there is no
exclusionary language in Section XVII for articles of textile
material for technical uses, the diaphragm is classifiable within
heading 8708, as a part of motor vehicles of headings 8701 to
8705.
We disagree with your interpretation of the legal notes. The
criteria set forth in the General Explanatory Notes to Section
XVII regarding parts and accessories provide the following:
(a) They must not be excluded by the terms of Note 2 to
this Section; and
(b) They must be suitable for use solely or principally
with the articles of Chapters 86 to 88; and
(c) They must not be more specifically included elsewhere
in the Nomenclature.
Legal Note 1(e) to Section XVI clearly directs classification of
the diaphragm to heading 5911. This is further evidenced by the
EN to heading 5911 which reads, in part, that "[t]he heading
includes, in particular, those textile articles which are
excluded from other headings and directed to heading 59.11 by any
specific provision of the Nomenclature (for example, Note 1(e) to
Section XVI). Emphasis supplied.
Moreover, the diaphragm is a component of the fuel pressure
regulator. If the fuel pressure regulator is excluded from
classification as a "part"of an automobile, it logically follows
that a mere component of the excluded article cannot itself
qualify as such a part. Particularly when classification of that
component is directed to a specific heading in the HTSUSA. Thus,
the fact that there is no exclusionary language in section XVII
for technical use articles of heading 5911, is inconsequential.
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Based on the foregoing, we find that the diaphragm is
classifiable under heading 5911, HTSUS, under the principles of
GRI 1.
HOLDING:
The fuel pressure regulator is classifiable under subheading
5911.90.0080, HTSUSA, which provides for "Textile products and
articles, for technical uses, specified in note 7 to this
chapter: Other: Other. It is dutiable at the general column one
rate at 6 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division