CLA-2:RR:CR:GC 962586 AML
TARIFF NOS.: 7312.10; 8709.90; 8714.19
Mr. Dennis Heck
Tower Group International, Inc.
5420 West 104th Street
Los Angeles, CA 90045-6069
RE: HQs 953799, 954101, 954102 and 954104 modified or revoked; accelerator or throttle cable assemblies for use with internal combustion piston engines
Dear Mr. Heck:
In Headquarters ruling letter (HQ) 953799, issued to you on May 5, 1994, on behalf of Kawasaki Motors Corp., in addition to other articles not relevant herein, throttle and choke cables for use with internal combustion piston engines for motorcycles were separately classified in subheading 8409.91.99, Harmonized Tariff Schedule of the United States (HTSUS), as other parts suitable for use solely or principally with spark-ignition, internal combustion piston engines.
In HQ 954101, issued to you on April 14, 1994, Kawasaki part # 54012-2472, a throttle cable for use with the internal combustion engine of a generating set, was classified in subheading 8409.91.99, HTSUS.
In HQ 954102, issued to you on March 15, 1994, in addition to other articles not relevant herein, Kawasaki part # 54012-1338, an engine throttle cable for a utility vehicle, was classified in subheading 8409.91.99, HTSUS.
In HQ 954104, dated March 10, 1994, Kawasaki part # 54012-2507, an engine throttle cable for use in a motorcycle, was classified in subheading, 8409.91.99, HTSUS.
We have reconsidered these rulings and for the reasons set forth in this decision have determined that the classifications provided in two of those rulings should be modified and the others should be revoked.
FACTS:
The relevant articles in HQ 953799 are described as follows:
The articles are throttle cables and choke cables. There are various types of each cable, all of which are push pull types, of stranded wire, some of carbon steel, with fittings at one or both ends. * * * The drawings suggest these cables are suitable for use principally with motorcycles.
The article in HQ 954101 was described as follows:
The article, designated Kawasaki part # 54012-2472, consists of stranded steel wires that slide inside a hard rubber sleeve with fittings at both ends. It is a cable that regulates a mechanism which controls the amount of fuel entering the carburetor of a spark-ignition internal combustion piston-type engine. This engine powers the generator portion of an electric generator set which functions to generate electricity. One end of the cable is attached to the fuel regulating mechanism and the other to a solenoid that reacts to an automatic voltage regulator.
The relevant article in HQ 954102 was described as follows:
The engine throttle cable, designated Kawasaki part # 54012-1338, is approximately 6 1/2 feet long and consists of stranded steel wires encased in hard rubber. One end has a threaded fitting with nuts . . . [and an] accordion-like rubber piece with a metal ferrule to keep it in place. The other end is identical but with a soft rubber sleeve about one foot from the end.
The article in HQ 954104 was described as follows:
The article, designated Kawasaki part # 54012-2507, is a cable that regulates a mechanism which controls the amount of fuel entering the carburetor of a 22.6 cc, 0.8 hp., spark-ignition internal combustion piston-type engine. [It] consists of stranded steel wires that slide inside a hard rubber sleeve . . . Both ends of the cable have enlarged metal ferrules to keep the cable in the sleeve.
ISSUE:
Whether these cables are classified as stranded wire, ropes, cables of iron or steel, not electrically insulated, other, fitted with fittings or made up into articles of heading 7312, HTSUS, or whether they have assumed the character of articles of other headings?
LAW and ANALYSIS:
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRI’s). GRI 1 states in part that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes[.]” The headings under consideration are as follows:
7312 Stranded wire, ropes, cables, plaited bands, slings and the like, of iron or steel, not electrically insulated:
Ropes, cables and cordage other than stranded wire:
7312.10.50 Of stainless steel fitted with fittings or made up into articles
7312.10.70 Other, fitted with fittings or made up into articles
* * * * *
8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408:
Other:
8409.91.99 Other.
* * * * *
8709 Works trucks . . .; parts:
8709.90.00 Parts.
* * * * *
8714 Parts and accessories of vehicles of headings 8711 to 8713:
8714.19.00 Of motorcycles: other.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, 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 System. Customs believes the ENs should always be consulted. See T.D. 89 80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Section XV, Note 2 states as follows:
2. Throughout the tariff schedule, the expression “parts of general use” means:
(a) Articles of heading 7307, 7312, 7315, 7317 or 7318 and similar articles of other base metals;
EN 73.12 provides in pertinent part, as follows:
The heading covers stranded wire (or wire strand) obtained by closely twisting together two or more single wires, and cables and ropes of all sizes which are in turn formed by twisting such strands together. Provided they remain essentially articles of iron or steel wire, ropes and cables may be laid on textile cores (hemp, jute, etc.) or covered with textiles, plastics, etc.
The heading includes such ropes, cables, bands, etc., whether or not they are cut to length, or fitted with hooks, spring hooks, swivels, rings, thimbles, clips, sockets, etc. (provided that they do not thereby assume the character of articles of other headings), or made up into single or multiple slings, strops, etc.
The heading does not include:
(c) Brake cables, accelerator cables and similar cables suitable for use in motor vehicles of Chapter 87 (emphasis added).
Section Note XVI, provides in pertinent part, as follows:
1. This section does not cover:
* * *
(g) Parts of general use, as defined in note 2 to section XV, of base metal (section XV), or similar goods of plastics (chapter 39);
* * *
(l) Articles of section XVII;
2. Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;
(c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8485 or 8548.
Section Note XVII provides, in pertinent part, as follows:
2. 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:
* * *
(b) Parts of general use, as defined in note 2 to section XV, of base metal (section XV) or similar goods of plastics (chapter 39);
* * *
(e) Machines or apparatus of headings 8401 to 8479, or parts thereof; articles of heading 8481 or 8482 or, provided they constitute integral parts of engines or motors, articles of heading 8483[.]
EN 87.09 provides in pertinent part:
This heading also covers parts of the vehicles specified in the heading, provided the parts fulfil both the following conditions:
(i) They must be identifiable as being suitable for use solely or principally with such vehicles; and
(ii) They must not be excluded from this heading by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note).
* * *
Parts of this heading include:
(9) Clutch cables, brake 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.
Similar, inclusive language can be found in the exemplars listed in ENs 87.08, specifically EN 87.08 (O), which provides for parts and accessories for the motor vehicles of headings 8701 to 8405, and in the ENs for heading 8414, specifically 84.14 (25), which provides for parts and accessories for the vehicles of headings 8711 to 8713.
Prior to 1996, the ENs to headings 7312, 8708, 8709 and 8714, HTSUS, provided a limited number of exemplars regarding the cables of heading 8708, HTSUS. At the Twelfth Session of the Harmonized System Committee (HSC) of the World Customs Organization, the ENs to these headings were amended as set forth by document 38.270 E (HSC/12/Oct. 93), dated October 29, 1993, and an exemplar was added to the ENs for the affected headings to specifically address the inclusion of accelerator cables and similar cables consisting of a flexible outer casing and a moveable inner cable presented cut to length and equipped with end fittings. The amendment became effective in 1996. Based upon the amendment of the ENs, and the evinced intent of the HSC to include accelerator cables within headings 8708, 8709 and 8714 we believe that a change of Customs position in the subject rulings is mandated.
It has been held that a part of an article is something that is an integral, constituent or component part necessary to the completion of the article with which it is used. See United States v. Willoughby Camera Stores, Inc., 21 CCPA 322 (1933), Bauerhin Technologies Ltd., et al. v. United States, Slip Op. 95-206 (Ct. Int’l Trade, decided December 26, 1995), aff’d. Slip Op. 96-1275 (Fed. Cir., decided April 2, 1997), and related cases. These decisions focus on the nature and function of the imported part as it was placed in use with another article. It must be determined whether the cables at issue are integral, constituent or component parts necessary to the completion of a good. The subject HQ rulings merely asserted that the cables were parts of internal combustion piston engines but did not, in fact, examine this in any detail. Such an examination is necessary at this time in light of the amended ENs.
The throttle and accelerator cable assemblies are not essential parts of an internal combustion piston engine. Structurally, as well as for Customs purposes, an internal combustion piston engine is complete and whole without the cables in question. The cables are not constituent component parts without which the engine would be incomplete. The cable assemblies enable an operator to increase the fuel utilized by the engine, thereby making a vehicle or other entity which is dependent upon an engine for its operation able to perform to its expected capacity.
The ENs for headings 7312, 8708, 8709, and 8414 sustain this position. The ENs provide that accelerator cables or similar cables, which are suitable for use in motor vehicles, are to be classified in Chapter 87 as parts of motor vehicles and not as parts of the internal combustion piston engines in heading 8409. If the accelerator or similar-type cables were, in fact, integral, constituent or component parts of engines, Section XVI Note 2 (b), in concert with Section XVII Note 2(e), would compel their classification in heading 8409.
In conformity with the cited ENs, the throttle and choke cables of HQ 953799 and HQ 954104, which by virtue of having been cut to length and fitted with end fittings dedicating them to sole or principal use with the motorcycles of heading 8711, are classified in subheading 8714.19.00, HTSUS, which provides for other parts of motorcycles.
Also in conformity with the cited ENs, the engine throttle cable of HQ 954102, which by virtue of having been cut to length and fitted with end fittings dedicating them to sole or principal use with a works truck of heading 8709, is classified in subheading 8709.90.00, HTSUS, which provides for parts of such a vehicle.
Neither the foregoing discussion of engine parts nor the record for HQ 954101 compels a finding that the engine throttle cable employed with an internal combustion piston engine used to power the generator portion of an electric generating set is an integral, constituent or component part of the engine or generating set. The cable has not been shown to assume the character of an article of another heading and thus remains classified in heading 7312. Section XVI, Note 1 (g) and the ENs to heading 7312 followed.
HQ 953111, dated January 4, 1993, referenced a classification opinion rendered by the Harmonized System Committee (HSC), which holds, in part, that automotive hand brake cables are to be classified in subheading 8708.39, because they had assumed the character of goods of that heading. The rationale of HQ 953111 was used to classify the goods specified in the subject Headquarters rulings, to wit, that the cables of those rulings had assumed the character of articles of other headings.
HOLDING:
The motorcycle throttle cables, consisting of a flexible outer casing and movable inner cable, cut to length and equipped with end fittings, are classifiable under subheading 8714.19.00, HTSUS, as other parts and accessories of the motor vehicles of headings 8711 to 8713.
The works truck throttle cable, consisting of a flexible outer casing and movable inner cable, cut to length and equipped with end fittings, is classifiable in subheading 8709.90.00, HTSUS, as parts of a works truck.
The throttle cable for use with an engine of a generating set, if of stainless steel, is classifiable in subheading 7312.10.50, HTSUS, as ropes, cables and cordage other than stranded wire: of stainless steel fitted with fittings or made up into articles; if of other than stainless steel, these cables are classifiable in subheading 7312.10.70, HTSUS, as ropes, cables and cordage other than stranded wire: other, fitted with fittings or made up into articles.
EFFECT ON OTHER RULINGS:
HQs 953799 and 954102 are modified as they pertain to the accelerator or throttle cable assemblies, and HQs 954101 and 954104 are revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division