OT:RR:CTF:FTM H287397 PJG
Ms. Katherine Tu
Budge Industries, Inc.
1240 South Broad Street – Suite 140
Lansdale, PA 19446
RE: Revocation of NY 866826; Modification of NY I89651; tariff classification of non-textile car covers
Dear Ms. Tu:
On January 15, 2003, U.S. Customs and Border Protection (“CBP”) issued to you New York Ruling Letter (“NY”) I89651. It concerned the tariff classification of a car cover and a general purpose cover under the Harmonized Tariff Schedule of the United States (“HTSUS”). We are modifying this ruling only insofar as the car cover is concerned.
CBP is also revoking NY 866826, dated September 20, 1991, in which three car covers were classified in heading 8708, HTSUS. In this ruling, we address the classification of the vinyl car cover in NY 866826. The classification of the non-woven polypropylene car cover and the non-woven polyester/nylon car covers are being addressed in a separate action because the component materials of the car covers are key to their proper tariff classification.
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. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on May 8, 2019, in Volume 53, Number 14, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY I89651, the subject car cover was described as follows:
The covers will be imported in two basic shapes: rectangular and car-shaped. The sample is a rectangular cover composed of polyethylene vinyl acetate (PEVA) plastic. The rectangular covers are general purpose covers that will be imported in sizes ranging from 12 feet by 20 feet to 18 feet by 24 feet. The covers have a string running through the edges to secure the cover. The car-shaped covers are also composed of PEVA plastic and have a string for securing them to the car. The car-shaped covers will be imported in small, medium and large sizes.
In NY I89651, CBP classified the polyethylene vinyl acetate (“PEVA”) plastic car covers in heading 8708, HTSUS, and specifically under subheading 8708.99.8080, HTSUSA, which in the 2003 version of the HTSUS provided for “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other parts and accessories: Other: Other: Other: Other.”
ISSUE:
Whether the subject car covers are classifiable in heading 3926, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914,” or under heading 8708, HTSUS, which provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705.”
LAW AND ANALYSIS:
Classification determinations under the Harmonized Tariff Schedule of the United States (“HTSUS”) are made in accordance with the General Rules of Interpretation (“GRI”). 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 2019 HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Note 3 to Section XVII states as follows:
References in chapters 86 to 88 to "parts" or "accessories" do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those chapters. A part or accessory which answers to a description in two or more of the headings of those chapters is to be classified under that heading which corresponds to the principal use of that part or accessory.
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
EN to Section XVII states, in pertinent part:
* * *
(III) PARTS AND ACCESSORIES
* * *
It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:
(a) They must not be excluded by the terms of Note 2 to this Section (see paragraph (A) below).
and (b) They must be suitable for use solely or principally with the articles of Chapters 86 to 88 (see paragraph (B) below).
and (c) They must not be more specifically included elsewhere in the Nomenclature (see paragraph (C) below).
* * *
EN to 87.08 states, in pertinent part:
This heading covers parts and accessories of the motor vehicles of headings 87.01 to 87.05, provided the parts and accessories fulfil both the following conditions:
(i) They must be identifiable as being suitable for use solely or principally with the above mentioned vehicles;
and (ii) They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note).
Parts and accessories of this heading include :
(A) Assembled motor vehicle chassis frames (whether or not fitted with wheels but without engines) and parts thereof (side members, braces, cross members; suspension mountings; supports and brackets for the coachwork, engine, running boards, battery or fuel tanks, etc.).
(B) Parts of bodies and associated accessories, for example, floor boards, sides, front or rear panels, luggage compartments, etc.; doors and parts thereof; bonnets (hoods); framed windows, windows equipped with heating resistors and electrical connectors, window frames; running boards; wings (fenders), mudguards; dashboards; radiator cowlings; number plate brackets; bumpers and over riders; steering column brackets; exterior luggage racks; visors; non electric heating and defrosting appliances which use the heat produced by the engine of the vehicle; safety seat belts designed to be permanently fixed into motor vehicles for the protection of persons; floor mats (other than of textile material or unhardened vulcanised rubber), etc. Assemblies (including unit construction chassis bodies) not yet having the character of incomplete bodies, e.g., not yet fitted with doors, wings (fenders), bonnets (hoods) and rear compartment covers, etc., are classified in this heading and not in heading 87.07.
(C) Clutches (cone, plate, hydraulic, automatic, etc., but not the electro magnetic clutches of heading 85.05), clutch casings, plates and levers, and mounted linings.
(D) Gear boxes (transmissions) of all types (mechanical, overdrive, preselector, electro mechanical, automatic, etc.); torque converters; gear box (transmission) casings; shafts (other than internal parts of engines or motors); gear pinions; direct drive dog clutches and selector rods, etc.
(E) Drive-axles, with differential; non-driving axles (front or rear); casings for differentials; sun and planet gear pinions; hubs, stub-axles (axle journals), stub-axle brackets.
(F) Other transmission parts and components (for example, propeller shafts, half shafts; gears, gearing; plain shaft bearings; reduction gear assemblies; universal joints). But the heading excludes internal parts of engines, such as connecting rods, push rods and valvelifters of heading 84.09 and crank shafts, cam shafts and flywheels of heading 84.83.
(G) Steering gear parts (for example, steering column tubes, steering track rods and levers, steering knuckle tie rods; casings; racks and pinions; servo steering mechanisms).
(H) Brakes (shoe, segment, disc, etc.) and parts thereof (plates, drums, cylinders, mounted linings, oil reservoirs for hydraulic brakes, etc.); servo brakes and parts thereof.
(IJ) Suspension shock absorbers (friction, hydraulic, etc.) and other suspension parts (other than springs), torsion bars.
(K) Road wheels (pressed steel, wire spoked, etc.), whether or not fitted with tyres; tracks and sets of wheels for tracked vehicles; rims, discs, hub caps and spokes.
(L) Control equipment, for example, steering wheels, steering columns and steering boxes, steering wheel axles; gear change and hand brake levers; accelerator, brake and clutch pedals; connecting rods for brakes, clutches.
(M) Radiators, silencers (mufflers) and exhaust pipes, fuel tanks, etc.
(N) Clutch cables, brakes cables, accelerator cables and similar cables, consisting of a flexible outer casing and a moveable inner cable. They are presented cut to length and equipped with end fittings.
(O) Safety airbags of all types with inflater system (e.g., driver-side airbags, passenger-side airbags, airbags to be installed in door panels for side-impact protection or airbags to be installed in the ceiling of the vehicle for extra protection for the head) and parts thereof. The inflater systems include the igniter and propellant in a container that directs the expansion of gas into the airbag. The heading excludes remote sensors or electronic controllers, as they are not considered to be parts of the inflater system.
* * *
In Bauerhin Techs. Ltd. P’ship. v. United States, 110 F.3d 774 (Fed. Cir. 1997), the court identified two distinct lines of cases defining the word “part.” Consistent with United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933) (citations omitted), one line of cases holds that a part of an article “is something necessary to the completion of that article. . . . [W]ithout which the article to which it is to be joined, could not function as such article.” The other line of cases evolved from United States v. Pompeo, 43 C.C.P.A. 9, 14 (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, 282 F.3d 1349, 1353 (Fed. Cir. 2002), wherein the United States Court of Appeals for the Federal Circuit (“CAFC”) 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) (holding that inline roller skating protective gear is not an accessory because it “does not directly act on” or “contact” the roller skates)). This line of reasoning has been applied in previous CBP rulings. See e.g., HQ H255093 (Jan. 14, 2015); HQ H238494 (June 26, 2014); HQ H027028 (Aug. 19, 2008).
Insofar as the term “accessory” is concerned, the Court of International Trade (“CIT”) has previously referred to the common meaning of the term because the term is not defined by the HTSUS or its legislative history. See Rollerblade, Inc. v. United States, 24 Ct. Int’l Trade 812, 815-819 (2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)). We also employ the common and commercial meanings of the term “accessory”, as the CIT did in Rollerblade, Inc., wherein the court derived from various dictionaries “that an accessory must relate directly to the thing accessorized.” See Rollerblade, Inc., 24 Ct. Int’l Trade at 817. In Rollerblade, Inc., the CAFC noted that “an ‘accessory’ must bear a direct relationship to the primary article that it accessorizes.” 282 F.3d at 1352. In support of its finding that the protective gear was not an accessory to roller skates, the CAFC also noted that the “protective gear does not directly affect the skates’ operation.” Id. At 1353.
The subject merchandise in this case is not a “part” under any of the tests provided in the judicial decisions described above. It is not a “part” under the Willoughby test because a car can function without the instant cover. It is also not a “part” under the Pompeo test because firstly, it is secured onto the car using its attached string, which likely would not constitute being “installed”, but also because even if it were considered “installed”, the car can still operate without the cover. See also Rollerblade, Inc., 282 F.3d at 1353 (the CAFC found that the protective gear was not a part to the roller skates because they did not “attach to or contact” the roller skates, they were “not necessary to make the skates … work”, nor were “they necessary to make the skates … work efficiently or safely.”) In any case, the subject merchandise is not a “part” because it is not essential, constituent or integral to the vehicle. See id.
The subject merchandise is also not an “accessory” of motor vehicles. Like the protective gear in Rollerblade, Inc. and the truck tents classified in HQ H242603 (April 3, 2015), the car cover at issue does not directly affect the car’s operation nor does it contribute to the car’s effectiveness. See Rollerblade, Inc., 282 F.3d at 1353; HQ 960950 (Jan. 16, 1998) (stating that “[a]ccessories are of secondary importance,” but must “somehow contribute to the effectiveness of the principal article”). Instead, the instant car cover provides protection to a car when it is not in use. In fact, like the truck tents in HQ H242603, in order for the car cover to be usable thereon, the car must be parked. Also, like the truck tents in HQ H242603 (April 3, 2015), the car cover does not contribute to the car’s safe and efficient use.
Although the subject car cover is sometimes in contact with the car (unlike the protective gear in Rollerblade, Inc., which was never in contact with roller skates), the car cover is not in contact with the car while the car is in use. In this regard, we note that the exemplars of parts and accessories provided in EN 87.08, such as mudguards, exterior luggage racks, number-plate brackets, and floor mats, stay on the motor vehicle when it is in use and when it not in use. Therefore, the car cover is neither a part nor an accessory because unlike the exemplars in the EN and unlike the articles in Rollerblade, it is in contact with the car only when the car is not in use and consequently cannot bear a direct relationship to the operation of the car. Since the subject merchandise is neither a “part” nor an “accessory” we need not consider General Explanatory Note (III) to Section XVII or the remainder of EN 87.08.
In HQ 953273, dated February 16, 1993, CBP cited to HQ 087596, dated January 31, 1991, wherein CBP distinguished between “loose” and fitted motor vehicle covers and classified fitted motor vehicle covers as parts and accessories for motor vehicles. In HQ 953273, CBP determined on the basis of EN 63.06, that “there is no reason to distinguish between ‘loose’ motor vehicle covers and fitted covers” and that “the authors of the Harmonized Commodity Description and Coding System did not intend for motor vehicle covers to be classified as parts and accessories for motor vehicles. Instead, automobile covers must be viewed as items related to tarpaulins.” CBP proceeded to note that motor vehicle covers are not classifiable as tarpaulins because they are not flat, but “this fact does not transform the covers into parts and accessories. Rather, they are to be classified as other made up textile articles not more particularly described in the Nomenclature under heading 6307.” Ultimately, CBP classified the subject motor vehicle covers under subheading 6307.90.9986, HTSUS, which provided for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” This same reasoning was used in HQ 953272 and HQ 953274, both dated February 16, 1993.
In the instant case, the subject merchandise is not made up of textile materials, therefore the merchandise is not classifiable in heading 6307, HTSUS. However, HQ 953272, HQ 953273, and HQ 953274 are instructive because CBP determined therein that car covers are not classifiable as parts and accessories for motor vehicles, in heading 8708, HTSUS.
The subject merchandise is composed of PEVA plastic. Heading 3926, HTSUS, provides for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914.” EN 39.26 indicates that heading 3926, HTSUS is a basket provision that is intended to “cover[] articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.” According to the Court of International Trade, “[c]lassification of imported merchandise in a basket provision is appropriate only when there is no tariff category that covers the merchandise more specifically.” Apex Universal, Inc. v. United States, 22 Ct. Int’l Trade 465, 16 (1998). Since the subject merchandise is not provided for more specifically in a different tariff heading, we find that it is classified in heading 3926, HTSUS, and specifically under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.”
HOLDING:
Under the authority of GRIs 1 and 6, the subject non-textile car cover is classified in heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2019 column one, general rate of duty is 5.3 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY I89651, dated January 15, 2003, is MODIFIED.
NY 866826, dated September 20, 1991, is REVOKED only with respect to the
non-woven vinyl car cover.
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