CLA-2 RR:CR:GC 966112 DSS
Port Director
Los Angeles-Long Beach Seaport
U.S. Customs and Border Protection
300 South Ferry Street
Los Angeles, CA 90731
RE: Request for Further Review of Protest No. 2704-02-100936; All Terrain Vehicle tires
Dear Port Director:
This is in response to the request for further review of Protest 2704-02-100936, timely filed on May 7, 2002 by PBB Global Logistics on behalf of the importer Goodyear Tire Co. against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain tires for All Terrain Vehicles. Product literature submitted with the protest depicts the tires at issue.
The protestant challenges Customs decision not to reclassify (see below) and claims that the proper classification of the tires at issue is under subheading 4011.91.50, HTSUS (2001), as “herring bone” or similar tires.
FACTS:
The file reflects the following. At issue are several types of Goodyear Dunlop tires for All-Terrain Vehicles (ATVs). The specific types of tires at issue are Models KT 705, KT 404 (which protestant argues is actually Model KT 405), KT 761 and KT 765.
The tires at issue in this protest were entered on February 6, February 26, March 27, April 17, May 1, May 7, and May 21, 2001 under subheading 4011.99.80, HTSUS (2001), as “New pneumatic tires, of rubber: . . . Other: . . . Other: . . . Other.” 2
On September 25, 2001, JM Rodgers Co. Inc. (JM Rodgers), on behalf of Goodyear Tires, requested reclassification and an administrative refund of duties on the above-mentioned entries, arguing that they had been incorrectly entered. JM Rodgers argued that the correct classification for the ATV tires is under subheading 4011.91.50, HTSUS, as “New pneumatic tires, of rubber: . . . Other: Having a ‘herring-bone’ or similar tread: . . . Other.”
On February 15, 2002, the entries were liquidated under subheading 4011.99.80, HTSUS, as new pneumatic rubber tires, “other” than herring-bone. You timely received the protest on May 7, 2002.
ISSUE:
What is the classification under the HTSUS of the ATV tires?
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 3 is utilized when, by application of GRI 2(b), a good consists of materials or components which are prima facie classifiable under two or more headings. In such a case, classification of the goods shall be effected as follows: “[GRI 3](a) [t]he heading which provides the most specific description shall be preferred to headings providing a more general description.” According to GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. The relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
The HTSUS (2001) provisions at issue are as follows:
New pneumatic tires, of rubber:
Of a kind used on motor cars (including station wagons and racing cars):
4011.10.10 Radial
* * * *
Other
* * * *
Other:
Having a “herring-bone” or similar tread:
* * * *
Other
* * * *
4011.99 Other:
* * * *
Other:
* * * *
4011.99.80 Other
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The proper heading in this case is heading 4011, HTSUS, for new pneumatic tires, of rubber, which is an eo nomine provision. The subheadings found within heading 4011, however, are "use" provisions in that they classify products which are "of a kind used" for a specified purpose. In this case, the tires must fall within a class of goods used on the machinery specified by the subheading terms. According to Additional U.S. Rule of Interpretation 1(a):
[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
Generally, the principal use is that use which exceeds every other individual use. See HQ 952830, dated February 1, 1993.
Prior to considering whether the tires at issue might have a "herring-bone" or similar tread, we note that such a determination is only necessary for tires not falling under subheadings 4011.10 - 4011.50, HTSUS. New pneumatic tires for various types of vehicles come under these subheadings appearing earlier under the same heading and would be classified thereunder, depending on their size and construction, (i.e., radial or other).
GRI 6 permits us to compare subheadings within the same heading, provided that only subheadings at the same level are comparable. Under GRI 6, the relative section, chapter and subchapter notes apply, unless the context otherwise requires. According to GRI 3(a), when goods are, prima facie, classifiable under two or more headings (or in this case, under GRI 6, subheadings), “[T]he heading which provides the most specific description shall be preferred to headings providing a more general description.” The tires at issue appear, prima facie, to be classifiable under subheading 4011.11, HTSUS, which provides for “new pneumatic tires, of rubber, of a kind used on motor cars . . . “ and 4011.99, HTSUS.
Thus, the merchandise in question must be classified pursuant to the heading providing the most specific description. See Better Home Plastics Corp v. United States, 20 C.I.T. 221, 222; 916 F. Supp. 1265, 1266 (1996). ATVs are classified in heading 8703, HTSUS, which provides for “motor cars and other motor vehicles designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars.” See HQ 953745, dated April 7, 1993, NY F84501, dated January 31, 2000, NY I86623 dated October 8, 2002, and NY I89444, dated December 17, 2002. Motor cars are not defined in the legal text of the HTSUS or in the ENs, however, tariff terms are generally construed in accordance with their common and commercial meanings which are presumed to be the same. See United States v. C.J. Tower & Sons, 48 CCPA 21, C.A.D. 770 (1961), and related cases. In determining the common meaning of a term, it is appropriate to consult dictionaries, lexicons and other reliable sources of information.
A review of dictionaries and other sources for the definition of “car” revealed a number of definitions, which shared certain common traits: that a car is a multi-wheeled vehicle, powered by an internal combustion engine. See, e.g., The Motoring Dictionary at http://www.themotoringdirectory.com/car.htm and Merriam-Webster Dictionary. In common meaning it appears the term is broad enough to encompass ATVs. In fact, relevant ENs describe ATVs among the vehicles encompassed by heading 8703. ATVs are the functional equivalent of motor cars since they are designed to transport persons, and are multi-wheeled vehicles, powered by an internal combustion engine. Therefore, for tariff purposes, tires for ATVs would fall under the description of tires “of a kind used on motor cars” under heading 4011, HTSUS.
The instant ATV tires are classified under subheading 4011.10, HTSUS, as “new, pneumatic tires, of rubber: of a kind used on motor cars (including station wagons and racing cars).” Based on the foregoing analysis, discussion of whether the tires have a “herring-bone” or similar tread is inapposite.
In NY A81065, dated April 3, 1996, we classified ATV tires under the “other” basket provision of subheading 4011.99, HTSUS. The tires in that ruling appear to be distinguishable from the tires in this protest as the tires in NY A81065 appear to be designed and advertised for use on several different types of vehicles.
It should be noted the information in the file accompanying this protest is inconclusive regarding whether Goodyear Dunlop Model 404 or 405 ATV tires were imported on the above-mentioned entries; based on the information in the file and general nature of the tires as ATV tires, however, it appears Goodyear Dunlop Model 404 and 405 ATV tires would be classified under subheading 4011.10, HTSUS.
To classify the tires under subheading 4011.10, HTSUS, it is necessary to determine whether the tires are of radial construction. However, the file does not indicate whether the tires are of radial construction. Based on the foregoing analysis, the ATV tires at issue are classified in subheading 4011.10, HTSUS. Accordingly, the protest should be denied in full.
HOLDING:
Under the authority of GRI 1, the ATV tires at issue are provided for in heading 4011, HTSUS. Under GRI 3(a), through application of GRI 6, they are classified under subheading 4011.10, HTSUS, as “new, pneumatic tires, of rubber, of a kind used on motor cars (including station wagons and racing cars).” If it is determined that the tires are of radial construction, then they would be classified under subheading 4011.10.10, HTSUS. If it is determined that the tires are not of radial construction, then they would be classified under subheading 4011.10.50, HTSUS.
Since the rate of duty under the classifications indicated above is either more than or the same as the liquidated rate, you are instructed to DENY the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
/s/
Myles B. Harmon
Director,
Commercial Rulings Division