CLA-2 OT:RR:CTF:TCM H017942 KSH
Mr. Shun Matsushita
NGK-Locke, Inc.
1000 Town Center
Southfield, MI 48075
RE: Revocation of HQ 954365; Catalytic Converter Ceramic Substrates. Dear Mr. Matsushita:
This letter is to inform you that U.S. Customs and Border
Protection (CBP) has reconsidered Headquarters Ruling Letter (HQ) 954365,
issued to NGK-Locke, Inc., on September 14, 1993, concerning the classification
under the Harmonized Tariff Schedule of the United States (HTSUS) of catalytic
converter ceramic substrates. The ceramic substrates were classified under
heading 8708, HTSUS, which provides for “Parts and accessories of the motor
vehicles of headings 8701 to 8705.” We have reviewed that ruling and found it to
be in error. Therefore, this ruling revokes HQ 954365.
HQ 954365 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, CBP 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 955742 when notice of denial 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 revocation will not affect the entries which were the subject of Protest 1101-93-100122, but will be applicable to any unliquidated entries, or future importations of similar merchandise 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN, unless an earlier date is requested pursuant to 19 CFR 177.12(e)(2)(ii).
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 of the proposed action was published on January 22, 2009 in Volume 43, Number 5, of the CUSTOMS BULLETIN. One comment opposing the proposed action was received in response to the notice.
FACTS: As stated in HQ 954365, the merchandise consists of catalytic converter ceramic substrates. The substrate is a specially designed honeycombed body made of ceramic cordierite. The production of the honeycomb begins with a combination of alumina, kalil, and talc contained within a slurry box. Water is then added to bind the components. The honeycomb is extruded and fired to produce the catalytic converter substrate. After importation into the U.S., it is then coated with a catalytic agent, bracketed in place in a metal converter housing, and inserted in a motor vehicle exhaust system. The substrate, contained within a catalytic converter, is suitable for use solely with a motor vehicle for exhaust gas purification in order to convert carbon monoxide, hydrocarbons, and nitrogen oxide into non- toxic substances.
ISSUE:
Whether the catalytic converter ceramic substrates are classified in heading 6909, HTSUS, which provides for “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods” or heading 8708, HTSUS, which provides for “Parts and accessories of the motor vehicles of heading 8701 to 8705”
LAW AND ANALYSIS:
Classification under the HTSUS is 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 GRI may then be applied.
Heading 8708, HTSUS, provides for: “Parts and accessories of the motor vehicles of headings 8701 to 8705.”
Heading 6909, HTSUS, provides for: “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods.”
Note 2 to Section XVII, excludes various items from classification as parts and accessories of motor vehicles. It reads in part:
The expressions “parts” and “parts and accessories” do not apply to the following articles, whether or not they are identifiable as for the goods of this section:
* * * *
(e) Machines or apparatus of headings 84.01 to 84.79, or parts thereof; articles of heading 84.81 or 84.82 or, provided they constitute integral parts of engines or motors, articles of heading 84.83;
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The criteria set forth in the General Explanatory Notes to Section XVII regarding parts and accessories provide the following:
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).
The EN to heading 6909, HTSUS, reads in relevant part:
* * * *
The heading covers in particular:
* * * *
(2) Ceramic wares for other technical uses, such as pumps, valves ; retorts, vats, chemical baths and other static containers with single or double walls (e.g., for electroplating, acid storage); taps for acids; coils, fractionating or distillation coils and columns, Raschig rings for petroleum fractionating apparatus; grinding apparatus and balls, etc., for grinding mills; thread guides for textile machinery and dies for extruding man-made textiles; plates, sticks, tips and the like, for tools.
The ceramic substrates are suitable for use solely or principally with the motor vehicles of chapter 87, HTSUS. However, Additional U.S. Rule of Interpretation (AUSR) 1(c) provides:
A provision for parts of an article covers products solely or principally used as a part of such articles, but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory[.]
The commenter argues that insofar as the substrates are suitable for use solely with a motor vehicle and are not excluded by Section XVII Notes 1 through 3, the substrates must be classified in heading 8708. The commenter also argues that heading 6909, HTSUS, does not provide the level of specificity necessary to preclude classification in heading 8708, HTSUS.
At importation, the substrates at issue are clearly identifiable as ceramic articles. However, the substrates also meet the terms of heading 8708. Consequently, in accordance with the EN to Section XVII and AUSRI 1(c), a determination must be made whether heading 8708, HTSUS, is more specific than heading 6909, HTSUS.
Heading 6909, HTSUS, which provides for “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods” is more specific than heading 8708, HTSUS, which provides for “Parts and accessories of the motor vehicles of headings 8701 to 8705.” Heading 6909, HTSUS, most narrowly and definitely describes the ceramic substrate and has the requirements that are the most difficult to satisfy. See Additional U.S. Rule of Interpretation 1(c). Numerous court cases have held that an eo nomine designation will prevail over a provision of general description. See Sharp Microelectronics Technology, Inc., v. United States, 122 F.3d 1446 (Sept. 2, 1997). It logically follows, therefore, that a provision which names a good, heading 6909, HTSUS, in this case, must prevail over a heading that provides for parts, but which does not identify any particular article. Accordingly, the ceramic substrates are classified in heading 6909, HTSUS.
Subheading 6909.11, HTSUS, provides for …ceramic wares for laboratory, chemical or other technical uses: of porcelain or china. Subheading 6909.12, HTSUS, provides for ……ceramic wares for laboratory, chemical or other technical uses: articles having a hardness equivalent to 9 or more on the Mohs scale. The Mohs measurement of the subject ceramic substrates is not specified. Therefore, the proper subheading for the ceramic substrates cannot be determined at this time.
HOLDING:
Pursuant to GRI 1 and Additional U.S. Rule of Interpretation 1(c), the catalytic converter ceramic substrates are classified in heading 6909, HTSUS. It is provided for in subheading 6909.11.20, HTSUS, which provides for “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods: Ceramic wares for laboratory, chemical or other technical uses: Of porcelain or china: Machinery parts” if the ceramic substrate does not have a hardness equivalent to 9 or more on the Mohs scale. The column one, general rate of duty is Free. If the ceramic substrate has a hardness equivalent to 9 or more on the Mohs scale, the applicable subheading is 6909.12.00, HTSUS, which provides for “Ceramic wares for laboratory, chemical or other technical uses; ceramic troughs, tubs and similar receptacles of a kind used in agriculture; ceramic pots, jars and similar articles of a kind used for the conveyance or packing of goods: Ceramic wares for laboratory, chemical or other technical uses: Articles having a hardness
equivalent to 9 or more on the Mohs scale.” The column one, general rate of duty is 4% ad valorem.
EFFECT ON OTHER RULINGS:
HQ 954365, dated September 14, 1993, 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