CLA-2 RR:CR:GC 966360 DSS
TARIFF NO: 4011.20.10
Ms. Margaret V. Wilson
Customs/Drawback Administrator
Michelin North America, Inc. One Parkway South
P.O. Box 19001
Greenville, South Carolina 29602-9001
RE: Reconsideration of New York Ruling Letter (NY) H89898; Certain Earthmover Tires from Netherlands and Canada; Ruling Correct Based on Available Information, Not on Imported Merchandise; Heading 4011
Dear Ms. Wilson:
This is in response to your letter, dated February 21, 2003, to the National Commodity Specialist Division requesting reconsideration of New York Ruling Letter (NY) H89898, dated March 29, 2002, regarding the classification of certain earthmover tires from the Netherlands and Canada under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was forwarded to this office for reply. After review of that ruling, the Bureau of Customs and Border Protection (Customs) has determined that the classification for two of the five tread patterns, identified as XK Tread Pattern of Global Part Numbers 284850 and 123475, based on their description at the time, was correct. While NY H89898 is correct on its face, new information provided about the tread patterns, 284850 and 123475, as presented in this ruling, forms the basis for these tread patterns being classified differently.
FACTS:
In NY H89898, we classified five tread patterns for certain Michelin Earthmover tires from the Netherlands and Canada. The five tread patterns consisted of the following: XADT Tread Pattern of Global Part Number (CAI) 123375; XADN Tread Pattern of Global Part Number 123427; XR Tread Pattern Global Part Number 280550; and XK Tread Pattern Global Part Numbers (part numbers) 284850 and 123475. Classification was based on the illustrative literature submitted, which the machinery on which the tires were used, the tread patterns themselves and other data from the Michelin Earthmover data book.
In NY H89898, part numbers 284850 and 123475 were classified under subheading 4011.63.00, HTSUS, which provides for, “New pneumatic tires of rubber: Other, having a “herring-bone” or similar tread: Of a kind used on construction of industrial handling vehicles and machines and having a rim size exceeding 61 cm.”
In your letter dated February 21, 2003, you provided the following additional information on part numbers 284850 and 123475:
My request of 03/19/02 mistakenly listed Part (CAI) Number 123475 as TRA Code: L3/G3.
Description: 55/80R 63 XK C E3R TL
Rim Diameter: 63 inches
The correct TRA Code is L3/E3
* * * *
The XK Tread Pattern tires are primarily used on “Transport Machines”, such as Bottom Dumpers, Rigid Dumpers, and Transport Truck[s] relative to the size of the tires and the size of the machines . . .
Michelin has defined the use of these tires to have a varierty of applications. The use of the tire determined by the Tire & Rim Association (TRA) is listed. The TRA coding system defined “L” for loaders and dozers, “E” is defined as earthmoving application and “G” is defined as graders.
NY H89898 was issued prior to the explanation provided in your letter about part numbers 284850 and 123475. However, based on the presumed facts and information available to Customs at the time NY H89898 was decided, the classification of part numbers 284850 and 123475 in NY H89898 was correct. Thus, there is no need to revoke or modify NY H89898. This letter provides a binding ruling as to the tariff classification of part numbers 284850 and 123475 based on the newly submitted information.
ISSUE:
Whether the instant tire tread patterns are classified under subheading 4011.20.10, HTSUS, as “New pneumatic tires, of rubber: Of a kind used on buses or trucks: Radial.”
LAW AND ANALYSIS:
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.
The HTSUS headings under consideration are as follows:
4011 New pneumatic tires, of rubber:
Of a kind used on buses or trucks:
Radial
Other, having a “herring-bone” or similar tread:
4011.63.00 Of a kind used on construction or industrial
handling vehciles and machines and having a rim size exceeding 61 cm
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Subheading 4011.63.00, HTSUS, provides for, “New pneumatic tires of rubber: Other, having a “herring-bone” or similar tread: Of a kind used on construction or industrial handling vehicles and machines and having a rim size exceeding 61 cm.” In NY H89898, based on the information provided, classification under the provision of “Other, having a herring-bone or similar tread” seemed appropriate. Based on our understanding of the equipment on which the instant tires were used, part numbers 248850 and 123475 were not considered to be suitable for use on any of the vehicles specifically listed in the other subheadings under heading 4011, HTSUS. Accordingly, we classified the tires under subheading 4011.63.00, HTSUS.
In your letter, you provided supplementary information about part numbers 248850 and 123475, specifically, that they are used principally in rigid dumpers and transport vehicles. Thus, based on the new information submitted, we are aware that the instant tire models are used on trucks. Therefore, we find that part numbers 248850 and 123475, under the present facts are not properly classified under subheading 4011.63.00, HTSUS.
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 instant tires might have a "herring-bone" or similar tread, we note that such a determination is only necessary for tires falling under the "Other " provision of subheading 4011.63, HTSUS. New pneumatic tires for various types of vehicles, e.g., cars, trucks, buses, come under subheadings appearing earlier under the same heading and would be classified thereunder, depending on their size and construction, i.e., radial or other.
In HQ 959730, dated May 29, 1997, and HQ 958100, dated March 25, 1997, we noted that tires with a tread pattern bearing a Tire and Rim Association (TRA) E-3 code, with or without another code, are considered to be suitable for use on dump trucks. The tires were classified under subheading 4011.20, HTSUS, as new pneumatic tires, of rubber, of a kind used on buses or trucks. The new factual information presented shows that part numbers 284850 and 123475 are used on dump trucks. Thus, based on the new factual information presented, part numbers 248850 and 123475 are classifible under subheading 4011.20.10, HTSUS.
HOLDING:
Under the authority of GRI 1, the tire tread patterns for part numbers 248850 and 123475 are provided for under heading 4011. They are classified under subheading 4011.20, HTSUS, which provides for "New penuamtic tires, of rubber: Of a kind used on buses or trucks: Radial.”
Sincerely,
Myles B. Harmon,
Director
Commercial Rulings Division