CLA-2 OT:RR:CTF:TCM H242029 ALS
Port Director
U.S. Customs and Border Protection
797 South Zaragosa
El Paso, Texas 79907
ATTN.: Ms. Nancy Easter
RE: Application for Further Review Protest No. 2402-12-150005; Tariff classification of Marine Propulsion Engine Panels
Dear Port Director:
This letter is in reply to the Application for Further Review (“AFR”) of Protest number 2402-12-150005, filed November 9, 2012, on behalf of BRP U.S., Inc. (“BRP” or “Protestant”). The Protest is against U.S. Customs and Border Protection’s (“CBP”) tariff classification of marine propulsion engine panels under subheading 3926.90.99 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The articles at issue are described as plastic panels that are installed around an outboard marine propulsion engine. They are called “Guard for Motor Boat Color Blue” (part ## 285763 and 285755) and “Left Guard for Motor Boat Color White” (part # 5008171). When installed around an engine, the panels comprise part of the engine compartment. The panels provide cover for the engine, which would be exposed without the panels in place.
BRP entered several of these items in two separate entries on October 21, 2011 and November 1, 2011. BRP entered the items under subheading 8409.91.92, HTSUS. Your office issued a Notice of Action to BRP for each entry on August 29, 2012, notifying it that CBP changed the tariff classification to subheading 3926.90.99, HTSUS, finding the subject items to be “external accessories to the engine and not required for the engine to operate…”
ISSUES:
Are the plastic engine panels properly classified as parts of an engine under heading 8409 of the HTSUS or as plastic articles under heading 3926 of the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the Protest was timely filed on November 9, 2012, which is within 180 days of the date of the Notices of Action, August 29, 2012. See 19 U.S.C. § 1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2). Further Review of Protest No. 2402-12-150005 is properly accorded to the Protestant pursuant to 19 CFR 174.24(a).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order.
The following headings of the 2011 HTSUS, Revision 1 are under consideration in this case:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80 Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408:
8409.91 Suitable for use solely or principally with spark-ignition internal combustion piston engines (including rotary engines):
8409.91.92 For marine propulsion engines. . . . . . . . . . . .
90 Other.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Note 2(b) of Section XVI of the HTSUS, under which heading 8409 is listed, states that “other parts, if suitable for solely or principally with a particular kind of machine… are to be classified with the machines of that kind or in heading 84.09.” Note 2(s) of Chapter 39 of the HTSUS states that the chapter does not cover “[a]rticles of section XVI (machines and mechanical or electrical appliances).”
As noted above, the protestant asserts that the articles at issue are classifiable under subheading 8409.91.92, HTSUS, as other parts suitable for use solely with an engine of heading 8408, specifically a marine propulsion engine. The Protestant contends that the plastic engine panels are essential components of the engine because of 1) safety concerns, 2) functionality of the engine, and 3) cosmetics of the engine. BRP states that certain parts of the engine, in particular the flywheel, are in motion during operation and generate heat. As such, BRP claims that it is necessary to cover the engine during operation to protect the operator from the hazards of the rapidly moving parts and the heat of the engine. BRP also states that the panels protect the engine from environmental factors such as water, salt, ice, and ultraviolet light, all of which would corrode and otherwise cause damage to the exposed engine. BRP also states that the engine is sold with the plastic engine panels installed and they are standard equipment with the engine, the cosmetic appearance of the panels being what the customer sees at first glance.
In Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F. Supp. 554 (1995), aff’d 110 F.3d 774 (Fed. Cir. 1997), the court pointed out that there are two distinct lines of cases defining the word "part" in the tariff. Starting with U.S. v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, (1933) T.D. 46075 (1933), cert. denied, 292 U.S. 640 (1934), this line of cases holds that a part of an article "is something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article." Another line of cases evolved from United States v. Antonio Pompeo, 43 CCPA 9, C.D. 1669 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it. The definition of "parts" was also discussed in Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247 (CIT 2000), aff’d, 282 F.3d 1349 (CAFC 2002). In that case, the United States Court of Appeals for the Federal Circuit, defined parts as "an essential element or constituent; integral portion which can be separated, replaced, etc." Id. at 1353 (citing Webster’s New World Dictionary 984 (3d College Ed. 1988)). The court also noted that a "part" must also bear a direct relationship to the primary article.
In CBP Ruling HQ 967688 (December 15, 2005), we held that leveling mounts, used to level and support equipment and machinery, were in fact parts that were necessary for the operation of the machinery “because they clearly enhance the safe and efficient operation of machines to which they are attached.” The ruling further states the following, citing CBP Ruling HQ 962634 (October 25, 2001):
CBP generally will consider an article to be a part if: it is combined with other articles to be used; or it is an integral, constituent or component part, without which the article to which it is joined could not function; or it aids in the safe and efficient operation of the main article; or it is identifiable by shape or other characteristics as an article solely or principally used as a part. In contrast, CBP generally will consider an article to be an accessory if: it facilitates use or handling; or it widens the range of uses of the main article; or it is not needed to enable the goods with which it is used to fulfill its intended function; or it is identifiable as being intended solely or principally for use with a specific article.
In the present case, there are three characteristics of the plastic engine panels that suggest they are parts of the engine. One, they aid in the safe and efficient operation of the engine by shielding the operator from rapidly moving and very hot parts of the engine. Two, the panels are built for and used solely and exclusively with the engines they are designed to work with. Three, while the engine will in fact function without the panels (meaning it can be turned on and left running), using the engine in the manner intended without the panels in place would be dangerous to the operator and hazardous to the engine itself because of exposure to the elements.
The subject panels are sold as standard equipment with the engine and in fact are installed as integral parts of the engine. Just as the leveling mounts in HQ 967688 were necessary to operate the machinery safely, so too are these engine panels for the marine propulsion engines.
Therefore, we find the subject plastic engine panels that are manufactured for, sold with, and solely used with a particular engine to be parts of that engine. Thus, as parts of spark-ignition internal combustion engines they are properly classified under subheading 8409.91.92, HTSUS, as other parts suitable for use solely with an engine of heading 8408, HTSUS, specifically a marine propulsion engine. See also CBP Ruling NY 803363 (November 2, 1994), classifying an engine shroud, used to cover an air-cooled engine, in heading 8409, HTSUS.
HOLDING:
The plastic engine panels are properly classified under heading 8409, HTSUS as parts of engines of heading 8408, HTSUS. Specifically, they are classified under subheading 8409.91.92, HTSUS, which provides for “Parts suitable for use solely or principally with the engines of heading 8407 or 8408: Suitable for use solely or principally with spark-ignition internal combustion piston engines (including rotary engines): For marine propulsion engines.” The general column one rate of duty, for merchandise classified in this subheading is 2.5 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
The Protest should be GRANTED in full. A copy of this ruling should be attached to the CBP Form 19 or equivalent document and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division