OT:RR:CTF:CPMMA H315471 KSG
CEE Director
Industrial and Manufacturing Materials Center for Excellence
JFK Airport, Building #77
Jamaica, NY 11430
Attn: Holly K McKinney, Import Specialist
RE: Tariff classification of automotive glass; Protest #180120100297
Dear Director:
This letter is in reference to your request for Internal Advice (IA) regarding the tariff classification of certain automotive glass under the Harmonized Tariff Schedule of the United States (HTSUS). At the request of counsel, a video conference was held on this matter on April 4, 2022. An additional submission by counsel, dated May 13, 2022, was considered in making this determination.
FACTS:
This IA involves certain automotive windshield glass, rear window automotive glass and side window automotive glass which were the subject of Lead Protest #180120100297 (this and related protests are suspended at the request of counsel for the importer pending the determination of the instant IA).
All of these articles were entered under subheading 8708.29.50, HTSUS, which provides as follows: “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other: Other.”
The nine (9) models at issue were described in a letter submitted by counsel on behalf of Fuyao North America, dated July 31, 2020, (Attachments A, B, and C),
which included model numbers, the particular automobile vehicle it fit on, a brief description and photographs of the articles. Although the nine models were described as “representative,” we are only able to rule on these nine models that were specifically described in the Protest as required by 19 CFR 174.13(a)(5).
The nine models were described as follows:
DW1817SGTY, Cadillac 5RX 4D Utility, 2012-2020. Automotive windshield with molding. Ceramic frit shown in photographs (Model A).
FW2824SGTYJ, Mercedes Benz GL 450 4D Utility, 2008-2012. Automotive windshield with molding. Ceramic frit shown in photographs (Model B).
FW317ISGBN, Kia Sorento 4D Utility, 2011-2015. Automotive windshield with heated. Ceramic frit shown in photographs (Model C).
FD25400YPN, Land Rover Range Rover Evoque 4D Utility, 2012-2019. Automotive tempered door glass (Model D).
FD26928SGTN, Toyota Prius 4D Hatchback, 2016-2020. Automotive tempered door glass (Model E).
DB9520SGTN, Ford Econoline 3D Van 1998-2016. Automotive tempered backlite glass. Photograph shows a ceramic frit (Model F).
DB12356YPN, Ford Transit Van 2015- 2019. Automotive tempered backlite glass with heated. Ceramic frit shown in photographs (Model G).
DB12357YPN, Ford Transit Van 2015-2019. Automotive tempered backlite glass with heated (Model H).
FB26160YPY, Nissan Rogue 4D Utility 2014-2020. Automotive tempered backlite glass with heated. Ceramic frit shown in photographs (Model I).
Counsel stated (and the photographs show) that the front windshields have a ceramic frit, which is described as baked-in black ceramic paint around the edges of the safety glass (models A, B, C). The photographs show that the backlite glass (models F, G, H, and I) also have a ceramic frit. The frit is painted black enamel that is baked around the border of automotive glass. The purpose of the frit is to provide an etched surface that allows the adhesive to bond to the automotive glass. It is the contact point between the glass and the frame and serves to strengthen the adhesive bond. It is also a shield against UV radiation which protects the adhesive bond, which would otherwise be weakened by continual exposure to direct sunlight. The frit can also reduce glare for the driver.
CBP issued a binding ruling to Fuyao, New York Ruling Letter (NY) N301993, dated February 6, 2019, which held that a front automotive windshield with an enamel paint frame, electrical connectors, and fittings to connect a side mirror and a rear backlite window with an enamel paint frame, silver heat lines, and electrical connectors were classified in subheading 8708.29.50, HTSUS.
LAW AND ANALYSIS
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The HTSUS headings under consideration are the following:
7007 Safety glass, consisting of toughened (tempered) or laminated glass
8708 Parts and accessories of the motor vehicles of heading 8701 to heading 8705
We note that there were changes made to the HTSUS in 2022 that would
impact similar articles from 2022 to present.
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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The Explanatory Note (EN) for heading 7007 states, in pertinent part, that “Safety glass incorporated in other articles and thus in the form of parts of machines, appliances or vehicles is classified with those machines, appliances or vehicles.”
The term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a part for tariff classification purposes. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997). Under the first test, articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933), an imported item qualifies as a part only if can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. Pursuant to the second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). An item is not a part if it is “a separate and distinct commercial entity.” Bauerhin, 110 F.3d at 779.
In Bauerhin, the Court of Federal Appeals (CAFC) considered whether a canopy designed for a car seat was considered a part of the car seat. The court stated:
The facts in Willoughby Camera are considerably different from those presented here in which the article at issue, the canopy, serves no function or purpose that is independent of the child safety seat. It is undisputedly designed, marketed, and sold to be attached to the child safety seats. The facts of this case bear a closer resemblance to United States v. Pompeo, 43 C.C.P.A. 9, 1955 WL 6859 (1955). In Pompeo, the issue was whether an imported supercharger was properly considered a part of an automobile. There, the court looked to the nature and function of the imported item, the supercharger, to determine whether the item was a part of an automobile. The government in that case argued that because the automobiles were able to function with or without the supercharger, the imported supercharger was not properly considered a part of the automobile. The court disagreed, noting that the classification of the supercharger should turn on the nature of the supercharger and not on the design choices of the automobile manufacturer. Because the imported supercharger was “dedicated irrevocably for use upon automobiles,” the court held that the supercharger was properly classified as a part of automobiles. Pompeo, 43 C.C.P.A. at 13.
The CAFC stated that Willoughby Camera and Pompeo must be read together but that Pompeo and not Willoughby Camera was controlling when an imported item is dedicated solely for use with an article. When an item is dedicated solely for use with an article, Pompeo is controlling and the item is classified as a part.
Headquarters Ruling Letter (HQ) H112616, dated November 1, 2010, considered whether tempered framed automotive side glass windows, framed rear glass windows, framed sunroofs, and unframed windshields fitted with two locator pins, optical couplers serving as rain sensors, and mirror bases were properly classified in heading 7007 as safety glass or in heading 8708 as parts of automobiles. CBP concluded in HQ H112616 that all these articles were properly classified in heading 8708 as parts of automobiles. In examining the unframed windshields, CBP stated as follows:
We note, however, that the windshield at issue is beyond the scope of heading 7007, HTSUS, because it is fitted with two locator pins, a rain sensor, and a mirror base, and as such, is designated for use in an automobile. It follows that the windshield is also classifiable under heading 8708, HTSUS, as ‘Parts … of the motor vehicles of headings 8701 to 8705.” Our conclusion is in accord with EN 87.08(B), which lists “windows equipped with heating resistors and electrical resistors,” goods akin to the one at issue, as a “part” of a motor vehicle’s body.”
Further, in NY N234452, dated November 16, 2012, CBP held that automotive windshields with a rubberized edge molding and/or a mirror button or a ceramic frit were classified in subheading 8708.29.50, HTSUS (now 8708.29.51).
In NY N309504, dated March 3, 2020, CBP concluded that backlite automotive glass equipped either with a ceramic frit border, silver heating and antenna lines or molding were classified in subheading 8708.29.50, HTSUS. In NY N309511, dated March 3, 2020, automotive glass windows that had a ceramic frit or a heating element attached or rubber molding were classified in subheading 8708.29.50, HTSUS.
In NY N303720, dated April 23, 2019, CBP classified a windshield with a frit border and a windshield with rubber edge molding (as well as several styles with other attachments) in subheading 8708.29.50, HTSUS.
In NY N267637, dated August 19, 2015, CBP determined that rear window automotive glass with heating lines were classified in subheading 8708.29.50, HTSUS.
In NY N257630, dated October 9, 2014, windshield glass for a truck that had a ceramic frit and a polyurethane rim was classified in subheading 8708.29.50, HTSUS.
CBP rulings are consistent in holding that automotive glass, framed or unframed, that has heating elements attached, or has a rubber molding or ceramic frit are properly classified as parts of automobiles in heading 8708. As stated in HQ H112616, only unframed windshield glass that has neither attachments nor ceramic frit and is “safety glass without more” would be classified in heading 7007. This is also consistent with the language in EN for heading 7007 cited above.
We find that NY N301993, issued to Fuyao, is directly on point. NY N301993 applies to Models C, G, H, and I that have heating elements attached. Further, NY N234452, NY N303720, NY N309511 and NY N309504, are on point and apply to Models A and B, automotive glass with a rubber edge molding. We note that the rubber molding is not described as a frame. It is an addition installed onto the automotive glass, making it more than mere safety glass.
Counsel asserts that the classification of the automotive glass with a frit in heading 7007, HTSUS, is consistent with Classification Opinion 7007.21/2 of the Harmonized System Committee (HSC) of the World Customs Organization (WCO). In this Opinion, the WCO classified automotive safety glass with a coated heating element in heading 7007, HS.
With respect to the Classification Decision of the HSC, CBP has previously considered and addressed such opinions stating: In Treasury Decision (“T.D.”) 89-80, decisions in the Compendium of
Classification Opinions should be treated in the same manner as the Harmonized Commodity Description and Coding System Explanatory Notes (EN’s), i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUSA, and are generally indicative of the proper interpretation of these headings. T.D. 89-80 further states that EN’s and decisions in the Compendium of Classification Opinions "should receive considerable weight."
See HQ 963181, dated September 20, 2000.
Further, the WCO opinion only refers to automotive glass with a coated heating element that provides heat insulation and solar control. The WCO opinion does not address the classification of automotive glass with a ceramic frit adhering the glass to the automobile.
CBP has consistently ruled that automotive glass with a frit is classified in heading 8708. See NY N234452, NY N309504, NY N309511, NY N303720 and NY N257630. The application of a ceramic frit is significant processing that renders the automotive glass a part of an automobile. It plays a significant role in the bonding of the glass to the frame and also provides UV protection and some level of sun shading. Based on the above, we find that the addition of the ceramic frit in Model F renders the automotive glass a part of a motor vehicle which is classified in heading 8708.
Based on all the above, including the EN for heading 7007, Pompeo and the CBP rulings cited above, we conclude that pursuant to GRI’s 1 and 6, the front windshield automotive glass that contain rubber molding (Models A and B), the front and rear automotive glass that contain heating devices (Models C, G, H, and I), and the backlit glass that contains a frit (Model F), are properly classified in subheading 8708.29.51, HTSUS, as parts of motor vehicles.
Since Models D and E are tempered automotive glass without a frit or any other attachments, we find that, consistent with the CBP rulings cited above, that those models would be classified in heading 7007, HTSUS. Pursuant to GRI 6, Models D and E are properly classified in subheading 7007.11.10, HTSUS.
HOLDING:
Pursuant to GRI’s 1 and 6, Models A, B, C, F, G, H and I are properly classified in subheading 8708.29.50, HTSUS (now 8708.29.51, HTSUS) which provides for “Parts and accessories of the motor vehicles of heading 8701 to heading 8705: Other: Other: Other.” The column one, general rate of duty is 2.5%.
Models D and E are classified in subheading 7007.11.10, HTSUS, which provides for “Safety glass, consisting of toughened (tempered) or laminated glass: Toughened (tempered) safety glass: Of size and shape suitable for incorporation in vehicles, aircraft, spacecraft or vessels: For motor vehicles of chapter 87.” The column one general rate of duty is 5.5%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the world wide web at www.itc.gov.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
for
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
cc: NIS Elena Pietron, and NIS Liana Alvarez, NCSD