CLA-2 OT:RR:CTF:CPM H264768 CkG
TARIFF NO: 4011.90.80, 9817.00.60
Myron Paul Barlow, Esq.
Barlow & Co, LLC
550 M Ritchie Highway, #114
Severna Park, MD 21146
RE: Revocation of HQ H156538; classification of tires for lawn mowers
Dear Mr. Barlow,
This is in reference to Headquarters Ruling Letter (HQ) H156538, issued to the Port Director in Atlanta, Georgia on June 13, 2012. HQ H156538 was issued in response to the Application for Further Review of Protest No. 1704-10-100242 filed on behalf of Monitor Manufacturing Corp. (‘Protestant”). In HQ H156538, CBP determined that 97 entries of tires for lawn mowers were classified in subheading 4011.99.85, Harmonized Tariff Schedule of the United States (HTSUS), as “other” pneumatic tires, of rubber. Since the issuance of that ruling, Customs and Border Protection (CBP) has reviewed the classification of these items and has determined that the cited ruling is in error.
HQ H156538 is a decision on a specific protest. A protest is designed to handle
entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ H156538 when notice of disposition of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F. Supp. 738 (1935). However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. This modification will not affect the entries which were the subject of Protest 1704-10-100242, but will be applicable to any entries of similar merchandise made 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke HQ H156538 was published on August 2, 2017, in Volume 51, Number 31 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
At issue are 31 models of tires for use on lawn mowers, of the following four styles: Kenda K358 Turf Rider, Kenda K401, Kenda K404, and the Kenda Super Turf K500. The tires are designed for low speed (normally 10 mph or less) turf application, and range in size from 13 to 24 inches in diameter, with a maximum load limit of 1340 lbs.
ISSUE:
Whether the subject tire styles are classified in subheading 4011.70.00, HTSUS, as tires of a kind used on agricultural or forestry vehicles and machines, or in subheading 4011.90.00, HTSUS, as other tires.
Whether the subject tires are subject to the special duty provision of subheading 9817.00.60, as parts of a machine of heading 8433, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.
The 2017 HTSUS provisions under consideration are as follows:
4011: New pneumatic tires, of rubber:
4011.70.00: Of a kind used on agricultural or forestry vehicles and machines
4011.90: Other:
4011.90.10: Having a herring-bone or similar tread…
4011.90.20: Radial…
4011.90.80: Other…
* * * *
9817.00.60: Parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436, whether or not such parts are principally used as parts of such articles and whether or not covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c) .
* * * * *
Additional U.S. Rule of Interpretation 1(b) states, in pertinent part:
(b) A tariff classification controlled by the actual use to which the imported goods are put in the United States is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered;
U.S. Note 2(t) to Subchapter XVII of Chapter 98, Section XXII provides:
The provisions of headings 9817.00.50 and 9817.00.60 do not apply to:
(t) Articles provided for in subheadings 8419.81.50, 8419.81.90, 8427.10, 8427.20, 8427.90 and 8431.20, headings 8432, 8433 and 8434, subheadings 8435.10 and 8435.90, heading 8436, subheadings 8438.80, 8468.10, 8472.90.40 and 8479.89, subheadings 8482.10.10 through 8482.99.65 (other than subheading 8482.91) and subheadings 8483.10.50 and 8487.10
* * * * *
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System 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 the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Explanatory Note to Section XVI provides, in pertinent part, as follows:
The Section does not, however, cover:
(a) Transmission or conveyor belts or belting, of plastics (Chapter 39); articles of unhardened vulcanised rubber (e.g., transmission or conveyor belts or belting) (heading 40.10), rubber tyres, tubes, etc. (headings 40.11 to 40.13) and washers, etc. (heading 40.16).
The EN to heading 8433 provides, in pertinent part, as follows:
This heading covers machines used in place of hand tools, for the mechanical performance of the following operations:
Harvesting of agricultural crops (e.g., reaping, croplifting, gathering, picking,
threshing, binding or bundling). Hay or grass mowers, and straw or fodder balers are also included in this heading.
Machines for cleaning, sorting or grading eggs, fruit or other agricultural
produce, other than machinery of heading 84.37.
The provisions of Explanatory Note to heading 84.32 apply, mutatis mutandis, to this heading.
The EN to heading 8432, HTSUS, provides, in pertinent part:
This heading covers machines, whatever their mode of traction, used in place of hand tools, for one or more of the following classes of agricultural, horticultural or forestry work, viz.:
Preparing the soil for cultivation (clearing, breaking, tilling, ploughing,
loosening, etc.).
Spreading or distributing fertilisers, including manure, or other products to
improve the soil.
(III) Planting or sowing.
The working or maintenance of the soil during the growing period (hoeing,
weeding, cleaning etc.).
* * * * *
In HQ H156538, CBP determined that the instant tires were properly classified in subheading 4011.99.85 (now subheading 4011.90.80, HTSUS), as “other” pneumatic tires, and not, as protestant claimed, in subheading 4011.92.00 (now subheading 4011.70.00, HTSUS), as tires of a kind used on agricultural machines. As discussed in HQ H156538, the tires at issue are of a kind principally used on lawn and garden tractors. Lawn and garden vehicles are not used for raising livestock, cultivating the soil, or raising crops. They are used to groom and care for lawns, which is an ornamental purpose. As such, tires for lawn and garden vehicles are not of a kind used on agricultural vehicles or machinery and are thus not classified in subheading 4011.70.00, HTSUS. As the tires at issue do not have a herring-bone tread they are classified in subheading 4011.90.80, HTSUS, as “other” pneumatic tires.
In HQ H156538, Protestant also presented an alternative claim for duty free
treatment under the special classification provision of subheading 9817.00.60, HTSUS, an actual use provision provided for in Additional U.S. Rule of Interpretation 1(b). Subheading 9817.00.60, HTSUS, provides for parts to be used in articles provided for in heading 8433, HTSUS. CBP determined in HQ H156538 that the conditions of subheading 9817.00.60 were not met with respect to the instant articles, because they were not classifiable as parts of heading 8433, HTSUS. We have reconsidered this decision, and have determined that it was in error.
CBP requires that in order for an article to be classified in subheading 9817.00.60, it must satisfy the following three-part test:
1) The article must not be among the long list of exclusions to heading
9817.00.50 or 9817.00.60 under Section XVII, Chapter 98, Subchapter
XVII, U.S. Note 2
The terms of subheading 9817.00.60 must be met in accordance with GRI 1; and
The merchandise must meet the actual use conditions required in accordance with sections 10.131 10.139 of the Customs Regulations (19 CFR §§10.131 10.139).
A good must satisfy each part of the test. If a good fails any part of the test, then it is treated according to its primary classification.
Articles provided for in heading 8433 are excluded from subheading 9817.00.60 pursuant to U.S. Note 2(t) to Subchapter XVII of Chapter 98. While the instant tires could be considered parts of an article of heading 8433, HTSUS, the exclusion in Note 2(t) refers only to “articles” and not “parts”, and the primary classification of the tires is not in heading 8433. Therefore, the lawn mower tires at issue do not fall within the exclusions enumerated in Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, and thus satisfy the first part of the test.
The instant tires also satisfy the terms of subheading 9817.00.60, which has two parts to it: the article under consideration must 1) qualify as a part; 2) to be used with an article of headings 8432, 8433, 8434, or 8436. With respect to the first part of the subheading, a part must be either: an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article (see United States v. Willoughby Camera Stores), or it must be dedicated solely for use with another article (see United States v. Pompeo (Pompeo). In this case, the instant tires are both integral parts without which the lawn mowers could not function, and they are dedicated solely or principally for use with the lawn mowers. Although they would not be classified as parts in heading 8433 due to Additional Rule of Interpretation 1(c) and Note 1(a) to Section XVI, if the tires satisfy the three part test articulated above, they are classified in subheading 9817.00.60 even if they would otherwise be excluded from classification in heading 8433, HTSUS.
As regards the second part of subheading 9817.00.60, lawn mowers are provided for in heading 8433, HTSUS, and therefore the lawn mower tires are parts to be used in an article provided for in heading 8433, HTSUS.
Finally, the protestant has also provided evidence that the instant lawn mower tires satisfy the actual use criteria required in accordance with sections 10.131 10.139 of the Customs Regulations (19 CFR §§10.131 10.139), so the third part of the three-part test above is satisfied.
In conclusion, the instant lawn mower tires are eligible for duty free treatment under subheading 9817.00.60, HTSUS.
HOLDING:
The Kenda K358 Turf Rider, Kenda K401, Kenda K404, and the Kenda Super
Turf K500 tires are eligible for duty free treatment under subheading 9817.00.60, HTSUS, which provides for “Parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436, whether or not such parts are principally used as parts of such articles and whether or not covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c).”
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 online at http://www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS:
H156538, dated June 13, 2012, is hereby revoked.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days
after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc: U.S. Customs and Border Protection
Port of Atlanta
4341 International Parkway Suite 600 Atlanta, GA 30354
Attn: Aineda Hanxard