CLA-2 OT:RR:CTF:CPM H285180 RGR
Center Director
Automotive and Aerospace Center of Excellence and Expertise
U.S. Customs and Border Protection
477 Michigan Avenue, Rm. 281
Detroit, MI 48226
Attn: Devin M. Lake, Import Specialist
Re: Internal advice request to regarding “K389 Hole-N-One” golf cart tires; NY N278164
Dear Port Director.
This is in response to a request, dated March 15, 2017, by the Automotive and Aerospace Center of Excellence and Expertise (“Automotive CEE”) for internal advice concerning reclassification of “K389 Hole-N-One” golf cart tires under the Harmonized Tariff Schedule of the United States (“HTSUS”) and revocation of New York Ruling Letter (“NY”) N278164, dated September 1, 2016. This request for Internal Advice is sought based upon the Automotive CEE’s disagreement with our determination in NY N278164 concerning whether the subject tires have a “herring-bone” or similar tread.
FACTS:
The subject tires examined in NY N278164, which are imported by Americana Development, Inc. (“importer”), consist of pneumatic, golf cart tires marketed under the name “K389 Hole-N-One.” The tires are 18 x 8.5 x 8 and are imported in both 4-ply and 6-ply. The tires also have a tread pattern consisting of short, slanted parallel lines going in opposite directions from the center of the tire tread, with the slants alternating row by row. The alternating slants of the tire tread meet in the center of the tire and form a “V” shape. The lugs in the tread form a shallow “V” shape.
In response to a binding ruling request submitted by the importer concerning the subject tires, U.S. Customs and Border Protection (“CBP”) issued NY N278164, dated September 1, 2016. In that ruling, CBP classified the subject tires under subheading 4011.69.0020, HTSUS (2016), which provided for “[n]ew pneumatic tires, of rubber: Other, having a ‘herring-bone’ or similar tread: Other: Of a kind used on golf carts, all-terrain vehicles, and for turf, lawn and garden, and trailer applications.”
On March 15, 2017, the Automotive CEE submitted a request for Internal Advice, stating its belief that the tires in the pictures submitted by the importer did not satisfy the exemplars provided in the World Customs Organization (“WCO”) Explanatory Notes (“EN”) for “herring-bone” because the lugs in the tread were not of a similar depth as in the exemplars. As the Automotive CEE is of the opinion that the subject tires do not have a “herring-bone” or similar tread, it asserts that the tires should be classified under subheading 4011.99.4520, HTSUS (2016), which provides for “[n]ew pneumatic tires, of rubber: Other: Other: Of a kind used on golf carts, all-terrain vehicles, and turf, lawn and garden, and trailer application.”
ISSUE:
Whether the subject tires are classified in subheading 4011.90.10, HTSUS, as tires “having a ‘herring-bone’ or similar tread,” or in subheading 4011.90.80, HTSUS, as “other” tires.
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. GRI 6 states that, “[f]or legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.”
The HTSUS provisions under consideration are as follows:
4011: New pneumatic tires, of rubber:
4011.90 Other:
4011.90.10 Having a “herring-bone” or similar tread
4011.90.80 Other
* * * *
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. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The Automotive CEE contends that the classification of the subject tires in NY N278164 is incorrect because the tires do not have a herring-bone tread for purposes of the HTSUS. On the other hand, the importer asserts that the classification set forth in NY N278164 is correct because the tires at issue have a herring-bone pattern as defined by CBP in Headquarters Ruling Letter (“HQ”) 958100, dated March 25, 1997.
Subheading 4011.90 provides for "New pneumatic tires, of rubber: Other." There is no dispute that the subject golf cart tires are classified therein. The issue arises at the eight-digit subheading level as to whether or not the subject tires have a “‘herring-bone’ or similar tread.”
CBP has concluded in prior rulings that “herring-bone” generally refers to a tread pattern consisting of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slants alternating row by row. These short slanted rows would meet in the center of the tire tread to form a “V” shape. See HQ H192148, dated January 12, 2016. This is supported by the 2012 EN heading 40.11, in which tires classified in subheadings 4011.61-4011.69 (having a “herring-bone” or similar tread) are pictured. All the tire treads pictured therein, except for one, have rows of short slanted parallel lines going in opposite directions with the slant alternating row by row, and which stop in the center of the tire and form a “V”-like pattern. The remaining tread pictured in the EN has short slanted parallel lines with the slant alternating row by row which do not meet in the center, but instead extend below the opposite slanted line. This is not a standard herring-bone tread, but an example of a “similar” tread. The tread lugs may be one solid line from sidewall to center, individual raised ridges aligned in a herring-bone pattern, or a combination of a strip of tread and ridges forming the angled line. Examples of herring-bone and similar treads from the 2012 ENs are pictured below:
The tread pattern on the tires at issue are similar to the examples pictured above. The examples pictured above establish that a “herring-bone” pattern is one which has alternating stripes of raised tread strips, or lugs, on a consistent angle from either sidewall to the center of the tread area. Similarly, in the tires at issue and in the examples pictured above, the tread pattern consists of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slant alternating row by row, meeting in the center of the tire tread to form a “V” shape. The Automotive CEE asserts that the subject tires are not a herring-bone or similar tread because the lugs in the tread are not of a similar depth as in the exemplars. However, nowhere in the HTSUS headings, the Explanatory Notes, or in the definition of “herring-bone or similar tread” applied by CBP in prior rulings is there reference to the depth of the lugs in the tread pattern. The term “herring-bone” simply refers to a type of tread pattern. Thus, the depth of the lugs in a tire tread does not determine whether a tire has a “herring-bone or similar tread” for purposes of tariff classification. In fact, we have held that tire treads that form a shallow “V” are considered “herring-bone or similar tread” as long as the pattern of the tread describes a typical herring-bone pattern consisting of rows of short slanted parallel lines going in the opposite directions from the center of the tread with the slant alternating row by row, meeting in the center of the tire tread to form a “V” shape. Specifically, we concluded in NY E83719, dated July 22, 1999, that “the term ‘similar tread’ appearing in heading 4011.91, Harmonized Tariff Schedule, is descriptive of a tire tread having the above-noted slanting alternating tire tread which forms a shallow ‘V’ in the center of the tire tread” (emphasis added). In sum, as long as a tire tread pattern corresponds to the above-described definition of “herring-bone or similar tread,” the depth of the lugs in the tread pattern is irrelevant in determining whether a tire has a “herring-bone or similar tread.”
We find that the tires at issue have a tread pattern similar to the 2012 EN exemplars and to what we have consistently held to constitute a “herring-bone or similar tread” for purposes of tariff classification. As such, we affirm NY N278164, finding that the subject tires are properly classified in subheading 4011.90.10, HTSUS, as “[n]ew pneumatic tires, of rubber: Other: Having a ‘herring-bone’ or similar tread.”
HOLDING:
By application of GRIs 1 and 6, the K389 Hole-In-One golf cart tires are classified in subheading 4011.90.10, HTSUS, which provides for “[n]ew pneumatic tires, of rubber: Other: Having a ‘herring-bone’ or similar tread.” The 2017 general, column one rate of duty is Free.
Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the public version of the decision available to CBP personnel, and to the public on the CBP Home Page online at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division