CLA-2 OT:RR:CTF:TCM H035440 RM

Mr. Dave Kracker
Kurabe America Corporation
39111 West Six Mile Road
Livonia, MI 48152

RE: Revocation of NY N004869; Classification of a Seat Heater Assembly for Automobiles

Dear Mr. Kracker:

This letter is in reference to New York Ruling Letter (“NY”) N004869, issued to Kurabe American Corporation on January 24, 2007, concerning the tariff classification of a seat heater assembly for automobiles. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the merchandise under heading 9401, Harmonized Tariff Schedule of the United States (“HTSUS”), as a “part” of a motor vehicle seat. We have reviewed NY N004869 and found it to be in error. For the reasons set forth below, we hereby revoke NY N004869.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), 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, 2186 (1993), notice of the proposed modification was published on October 9, 2008, in the Customs Bulletin, Volume 42, No. 12. Five comments were received in response to this notice and are addressed in this ruling.

FACTS:

In NY N004869, we described the merchandise as follows:

The submitted sample is a seat heater assembly for automobiles, Part Number SP 4729K. The item is not a seat but rather a pad that is installed into the seat itself. It is composed of insulated resistance wires that lie on top of a polyester base cloth. The wire itself is composed of copper alloy, the insulation is fluorine, and the wiring is adhered to the base cloth which is polyethylene. Power to the wiring is provided by the product’s polyvinylchloride (PVC) harness, which is plugged into an outlet in the automobile. The product is to be installed underneath the trim cover of automobile seats at your customer’s production plants.

ISSUE:

What is the correct tariff classification of the seat heater assembly for automobiles under the HTSUS? LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation ("GRIs"). GRI 1 provides, in part, that the classification of goods shall be determined according to terms of the headings 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, GRIs 2 through 6 may then be applied, in order.

When interpreting and implementing the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) should be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: 8516.80 Electric heating resistors: 8516.80.80 Other …

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: 8543.70 Other machines and apparatus: Other:                           Other: 8543.70.96     Other …

9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: 9401.90 Parts: 9401.90.10 Of seats of a kind used in motor vehicles …

In the proposed ruling published in the Customs Bulletin (Vol. 42, No. 12, October 9, 2008), CBP concluded that the seat heater assembly in NY N004869 was incorrectly classified under heading 9401, HTSUS, as a “part” of a motor vehicle seat because “whether or not the seat heater is applied to its specific use, the car seat still functions as a car seat.” As explained in the proposed ruling, our position was based on United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955) (hereinafter “Pompeo”), in which the court held that an article is a “part” if it is dedicated solely for use upon another article and, once installed, is integral to the functioning of the article to which it is joined. CBP proposed classification under heading 8543, HTSUS, which provides for “[e]lectrical machines and apparatus, not specified or included elsewhere, in [Chapter 85].”

In one of the comments received, it was pointed out that in Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997) (hereinafter “Bauerhin”), the court considered the nature of "parts" under the HTSUS and two distinct though not inconsistent tests resulted. See Bauerhin, 110 F.3d at 779 (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 in Bauerhin 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.

On the basis of the court’s definition of the term “part” in Bauerhin, cited above, commenter argued that the seat heating assembly is properly classified under heading 9401, HTSUS, as a “part” because it is dedicated solely for use with the motor vehicle seat, and is neither designed nor sold to be used independently. He submitted that it is irrelevant that the car seat may still function as a seat whether or not the seat heater is applied to its specific use.

On further review of Bauerhin, we find this analysis to be persuasive. However, under Additional U.S. Rule of Interpretation 1(c), HTSUS, “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.” Accordingly, although the seat heater is a part of a car seat, a specific provision for this part will prevail.

The other four comments received agreed with CBP that heading 9401, HTSUS, was the incorrect classification for the seat heater assemblies. However, the commenters disagreed with the heading proposed by CBP (8543, HTSUS) and argued that the seat heater assembly should be classified in heading 8516, HTSUS, which provides, in relevant part, for “electrical heating resistors.”

The term “resistor” is not defined in the tariff or in the legal notes.  When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). In addition, the Explanatory Notes of the Harmonized Commodity Description and Coding System (“ENs”) while not binding law, offer guidance as to how tariff terms are to be interpreted. See Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003) (noting that Explanatory Notes are "intended to clarify the scope of HTSUS subheadings and to offer guidance in their interpretation").

The Oxford English Dictionary (www.oed.com) defines the term “resistor” as “a passive device which impedes the flow of electric current, used to develop a voltage drop across itself or to limit current flow.” Merriam-Webster’s Dictionary (www.merriam-webster.com) defines “resistor” as “a device that has electrical resistance and that is used in an electric circuit for protection, operation, or current control.” The American Heritage Dictionary (4th ed. 2000) defines a “resistor” as “an electric circuit element used to provide resistance.” Based on the above definitions, we conclude that a “resistor” is a device that limits the flow of electric current in an electrical circuit.

In addition, the ENs to heading 8516 state, in relevant part:

(F) ELECTRIC HEATING RESISTORS

With the exception of those of carbon (heading 85.45), all electrical resistors are classified here, irrespective of the classification of the apparatus or equipment in which they are to be used.

They consist of bars, rods, plates, etc., or lengths of wire (usually coiled), or special material which becomes very hot when current is passed through it. The material used varies (special alloys, compositions based on silicon carbide, etc.) …

Wire resistors are usually mounted on insulating formers (e.g., of ceramics, steatite, mica or plastics) or on soft insulating core (e.g., of glass fibres or asbestos) …

Resistors remain classified here even if specialized for a particular machine or apparatus …

The instant seat heating assembly provides heat to the automotive seat through electrical resistance. The alloy wiring “resists” the flow of electric current provided by the automobile’s electric source and dissipates the resulting heat throughout the pad. In addition, it is not made of carbon. Accordingly, by application of GRI 1 and U.S. Additional Rule of Interpretation 1(c), HTSUS, we find the merchandise to be an “electric heating resistor,” classified under heading 8516, HTSUS. Our conclusion is in keeping with the ENs to heading 8516, which describe the electric heating resistors of the heading as “consist[ing] of … lengths of wire … usually mounted on soft insulating core.” We note, finally, that classification of the seat heating assembly under heading 8543, HTSUS, is precluded by the terms of that heading because it provided for in heading 8516, HTSUS. CBP has previously classified a substantially similar electric heating element used in the seat of an automobile under heading 8516, HTSUS. See NY D84978, dated December 17, 1998.

HOLDING:

By application of GRI 1 and Additional U.S. Rule of Interpretation 1(c), the seat heater assembly for automobiles is classified under heading 8516, specifically in subheading 8516.80.80, HTSUS, which provides, in relevant part, for: “[E]lectric heating resistors, other than those of heading 8545; parts thereof: Electric heating resistors: Other.” The 2008 column one, general rate of duty is Free.

Duty rates are provided for convenience only and are 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.

EFFECT ON OTHER RULINGS:

NY N004869, dated January 24, 2007, is hereby revoked. In accordance with 19 U.S.C. § 1625(c), this action will become effective 60 days after publication in the Customs Bulletin.


Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division