CLA-2
OT:RR:CTF:TCM H260942 PTM
Tariff No: 8716.90.50
Port Director
U.S. Customs and Border Protection
Service Port of Cleveland
6747 Engle Road
Middleburg Heights, OH 44130
RE: Application for Further Review of Protest No. 4501-14-100051; Tariff Classification of Power Washer Cart Wheels.
Dear Port Director,
This is in response to the protest and application for further review (“AFR”) of the above-referenced protest filed FNA Group (“FNA”) contesting U.S. Customs and Border Protection’s (“CBP”) classification of wheels of a power washer cart on the Harmonized Tariff Schedule of the United States (“HTSUS”). Our response follows.
FACTS:
On December 16, 2012, FNA filed entry on power washer wheels from China. The wheels were originally classified under subheading 8708.70.6060 as parts of motor vehicles. The entry liquidated on August 2, 2013.
The wheels are designed to fit on a power (pressure) washer. The wheels are imported separately from both the engine and the frame of the device. FNA states that the wheels are specifically designed and sold to be used on the pressure washer and is not used for any other purpose. FNA provided schematic drawings and images of the power washer which show the device using a Honda GCV 190 engine. The GCV 190 is described as an engine with a variety of applications, including: pressure washer, lawn mower, agricultural equipment and forestry equipment. For the power washer, the engine is mounted on a metal frame with a push handle. Controls for the power washer can be located on the push handle or on the engine itself, depending on the model. The power washers also incorporate a spray wand and flexible hose. The wheels are constructed of plastic or rubber and are attached to the metal frame. The following are images of two models of fully assembled power washers:
The wheels were originally classified under subheading 8708.70.6060, which provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705: Road wheels and parts and accessories thereof: Parts and accessories, other.” FNA asserts that the power washer wheels should be properly classified in subheading 8424.30.9000 HTSUS, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders…,parts thereof:…Parts: Other.”
ISSUE:
What is the tariff classification of power washer wheels?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed on July 2, 2014, within 180 days of the date of entry as required by 19 U.S.C. §1514(c)(3)(A).
Further Review of Protest No. 4501-14-100051 is properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(a) because the protested decision is alleged to be inconsistent with the ruling of the Commissioner of CBP or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, FNA alleges that the classification of the merchandise is inconsistent with CBP’s holding in New York Ruling (“NY”) N030783, dated June 23, 2008.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are the following:
8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:
8424.90 Parts:
* * *
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
8708.70 Road wheels and parts and accessories thereof
* * *
8716 Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof:
8716.90 Parts:
Power-washers have never been considered a “motor vehicle” of headings 8701 to 8705 HTSUS. In HQ H964636 (Jan. 4, 2001), the legacy Customs Service classified a power washer under heading 8424 HTSUS. Consequently, the wheels of the power washer cannot be described as wheels or parts of a motor vehicle. Therefore, the power-washer wheels are not classifiable under subheading 8708.90 HTSUS as they were entered.
Note 1(l) to Section XVI, HTSUS, of which heading is a part, states that “[t]his section does not cover…Articles of Section XVII.” Section XVII includes heading 8716, HTSUS. Thus, if the power washer wheels are classifiable in heading 8716 HTSUS, they are not classifiable in heading 8424 HTSUS.
CBP has previously classified a cart designed to transport power-washers in heading 8716 HTSUS. See New York Ruling (“NY”) J85390 (June 17, 2003). In that ruling, CBP rejected the importer’s proposed classification of the cart, as imported without the power-washer in heading 8424 as a part of a power-washer. We stated that the cart “is not a mechanical appliance for spraying liquids, nor is it a part of an appliance for spraying liquids.” The ruling further stated that “[t]he applicable subheading for the wheels – if imported separately will be 8716.90.”
FNA asserts that the wheels should be classified in subheading 8424.90.9040, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Parts: other.” FNA states that the wheels are specifically designed and sold to be used on a pressure washer, and it is therefore a “part” for purposes of classification.
U.S. courts have considered the nature of "parts" under the HTSUS and two distinct though not inconsistent tests have resulted. In Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997) (citing United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322 (1933) and United States v. Pompeo, 43 C.C.P.A. 9 (1955)), the court explained:
As set forth in Willoughby Camera, “an integral, constituent, or component part, without which the article to which it is to be joined could not function as such article” is surely a part for classification purposes. 221 C.C.P.A. at 324. However that test is not exclusive. Willoughby Camera does not address the situation where an imported item is dedicated solely for use with the article. Pompeo addresses that scenario and states that such an item can also be classified as a part.
Reconciling Willoughby Camera with Pompeo, we conclude that where, as here, an imported item is dedicated solely for use with another article and is not a separate and distinct commercial entity, Pompeo is a closer precedent and Willoughby Camera does not apply […] Under Pompeo, an imported item dedicated solely for use with another article is a “part” of that article within the meaning of the HTSUS.
The wheels attach to the metal frame cart to which the power-washer is attached. The wheels assist the user in moving the cart to the desired location. However, the wheels do not assist with the primary function of the power-washer, which is to pressurize and spray water for cleaning purposes. Therefore, it cannot be considered an integral, constituent or component part without which the pressure washer could function. By contrast, the power washer cart functions only to transport the power washer itself. The cart cannot be used to move the power washer without the wheels. Consequently, the wheels are an integral component of the cart itself.
FNA cites NY N030783 in support of its position that the power washer wheels should be classified in heading 8424 HTSUS. However, that ruling addressed a separate product in a separate heading (namely, tire and wheel assemblies for lawn mowers in subheading 8433.90 HTSUS). Because this ruling addresses a separate product, it has no bearing on the classification of the merchandise at issue here.
Based on the foregoing, we find that the power-washer wheels are properly classified under subheading 8716.90.50 as parts of the cart. This holding is consistent with our holding in NY J85390, supra, in which CBP held that the wheels of power washer carts are classified in subheading 8716.90, HTSUS.
HOLDING:
By application of GRI 1 (including Note 1(l) to Section XVI), the power-washer wheels are classified in heading 8716 HTSUS. Specifically, they are classified in subheading 8716.90.50, which provides for “Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: Parts: Other.”
The column one, general rate of duty is 3.1 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. Since the rate of duty under the classification indicated above is more than the liquidated rate, you are instructed to DENY the protest in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP 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 the decision must be accomplished prior to mailing the decision.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division