CLA-2 OT:RR:CTF:TCM H263902 GA
John M. Peterson, Esq.
NEVILLE PETERSON LLP
One Exchange Plaza
55 Broadway, Suite 2602
New York, New York 10006
RE: Request for Reconsideration of NY N261453; Tariff classification of Earth Mover and Off-The-Road Tires from various countries
Dear Mr. Peterson:
This is in response to your April 10, 2015 request for reconsideration of New York Ruling (NY) N261453, dated February 20, 2015, initiated by counsel on behalf of the importer, pertaining to the tariff classification of five (5) models of earthmover and off-the-road tires. In that ruling, the National Commodity Specialist Division (NCSD) determined that the five models of earthmover and off-the-road tires, were classified under subheading 4011.94.40, of the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “New pneumatic tires, of rubber: Other: Of a kind used on construction or industrial handling vehicles and machines and having a rim size exceeding 61 cm: Radial.” We affirm N261453 because we agree that the earthmover and off-the-road tires are described by subheading 4011.94.40, HTSUS.
In NY N261453, the five models of earth mover and off-the-road tires were described as follows:
The first tire has been identified as Global Part Number 845075, which is sized 35/65 R 33, with a rim diameter of 33 inches (83.82 cm).
The second tire has been identified as Global Part Number 512305, which is sized 29.5 R 29, with a rim diameter of 29 inches (73.66 cm).
The third tire has been identified as Global Part Number 775766, which is sized 29.5 R 25, with a rim diameter of 25 inches (63.25 cm).
The fourth tire has been identified Global Part Number 039149, which is sized 26.5 R 25, with a rim diameter of 25 inches (63.5 cm).
The fifth tire has been identified as Global Part Number 321951, which is sized 26.5 R 25, with a rim diameter of 25 inches (63.5 cm)
In your request for reconsideration of N088380, you argue that the models are classifiable under subheading 4011.20.10, HTSUS, which provides for “New pneumatic tires, of rubber: Of a kind used on buses or trucks: Radial.” You claim Customs treats a mine truck as being something other than a “truck.” You conclude that given there was no common meaning determination of the terms truck tires or construction or industrial handling vehicles, N261453 gives no basis why previous rulings with the same tires used for earthmoving and loading for mining trucks should not be classified under subheading 4011.20.10, HTSUS. Furthermore, you argue that the ruling incorrectly compares subheadings at the wrong digit level.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
Subheading 4011.20 is a “principal use” provision, governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides that:
In the absence of special language or context which otherwise requires--a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. 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).
In clarifying the scope and structure of heading 4011, HTSUS, EN 40.11 provides, in relevant part, as follows:
4011 New pneumatic tires, of rubber
4011.20 Of a kind used on buses or lorries
* * * *
Other
4011.94 Of a kind used on construction or industrial handling vehicles and machines and having a rim size exceeding 61 cm
* * * *
Subheadings 4011.62, 4011.63, 4011.93 and 4011.94
For the purposes of these subheadings, the expression "construction or industrial handling machines" includes vehicles and machines used for mining.
It is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation. See Group Italglass, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993).
EN 40.11, supra, refers to tires for “buses and lorries” of subheading 4011.20 as the legal text of the Harmonized Commodity Description and Coding System. In this regard, we note that Article 3 of the International Convention on the Harmonized Commodity Description and Coding System, states in pertinent part, as follows:
Subject to the exceptions enumerated in Article 4:
Each Contracting Party undertakes, except as provided in subparagraph (c) of this paragraph, that from the date on which this Convention enters into force in respect of it, its Customs tariff and statistical nomenclatures shall be in conformity with the Harmonized System. It thus undertakes that, in respect of its Customs tariff and statistical nomenclatures:
it shall use all the headings and subheadings of the Harmonized System without addition or modification, together with their related numerical codes;
it shall apply the General Rules for the interpretation of the Harmonized System and all the Section, Chapter and Subheading Notes, and shall not modify the scope of the Sections, Chapters, headings or subheadings of the Harmonized System; and
it shall follow the numerical sequence of the Harmonized System;
* * * *
In complying with the undertakings at paragraph 1 (a) of this Article, each Contracting Party may make such textual adaptations as may be necessary to give effect to the Harmonized System in its domestic law
That the text of subheading 4011.20 in the HTSUS refers to “trucks” as opposed to “lorries” is indicative of a textual adaptation to give effect to a term (“lorries”) that is not commonly used in American English. Accordingly, the scope of subheading 4011.20, HTSUS, is informed by the legal text of the Harmonized Commodity Description and Coding System as well as EN 40.11.
The above Explanatory Note’s reference to buses and lorries indicates that the contemplated class or kind would be the kind of tires which is meant to be used on-road or on-the highways passenger or commercial vehicles. Moreover, subheading EN 4011.62, 4011.63, 4011.93, and 4011.94, which describes goods that do not fall under the scope of subheading 4011.20, explains that the phrase “construction or industrial handling machines” includes “vehicles and machines used for mining.”
As you described in your submission, the instant tires are earthmoving and off-the-road tires which are have the XTXL Tread and are a part of a new line of underground mining earthmover tires developed and introduced in 2012 by Michelin. Furthermore, these new tires were built for vehicles manufactured by a particular mining company – ATLAS COPCO. The instant tires are designed specifically for mining trucks/machinery, which operate off-the-road or highways.
Therefore, the instant tires at issue do not qualify as of the kind used on buses or trucks (lorries) of subheading 4011.20, HTSUS. Rather, the instant tires are properly classified under subheading 4011.94.40, HTSUS.
Accordingly, we find that the instant tires are properly classified under subheading 4011.94.40, HTSUS, and affirm N261453.
Sincerely,
Myles B. Harmon, Director
Commercial Trade Facilitation Division