CLA-2 OT:RR:CTF:TCM H242642 ALS
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, Ohio 44130
RE: Application for Further Review Protest No. 4101-12-100758; Tariff classification of Cylinder Liners for Diesel Engines and Parts thereof
Dear Port Director:
This letter is in reply to the Application for Further Review (“AFR”) of Protest number 4101-12-100758, filed October 9, 2012, on behalf of Nan Fang Distribution Group, Inc. (“Nan Fang” or “Protestant”). The Protest is against U.S. Customs and Border Protection’s (“CBP’s”) tariff classification of the above-referenced cylinder liners and parts thereof under subheading 8409.99.91 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The articles at issue are described as diesel engine cylinder liners. As the name implies, they comprise the lining for shafts in which the cylinder moves up and down. They can be constructed of either micro alloy cast iron with flake graphite or compacted graphite cast iron. The Protestant states that as imported the cylinder liners are not manufactured for a specific type of engine.
Nan Fang entered several of these cylinder liners on September 29, 2011 under HTSUS subheading 8409.99.91. Nan Fang submitted a Post Entry Amendment form to your office on May 22, 2012, requesting that the classification on the entry be changed to 8409.99.99 on the basis that the subject merchandise was, in its condition as imported, not of a kind solely or principally used with motor vehicles referred to in HTSUS subheading 8409.99.91. Your office subsequently liquidated the subject entry under HTSUS subheading 8409.99.91 on August 10, 2012 without addressing the Post-Entry Amendment.
ISSUE:
Are the diesel engine cylinder liners properly classified under subheading 8409.99.99 of the HTSUS as other parts suitable for use solely or principally with engines of heading 8407 or 8408, or under subheading 8409.99.91 of the HTSUS as other parts for vehicles of subheading 8701.20 or heading 8702, 8703, or 8704?
LAW AND ANALYSIS:
Initially, we note that the Protest was timely filed on October 9, 2012, which is within 180 days of the date of the liquidation, August 10, 2012. See 19 U.S.C. §1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). Further Review of Protest No. 4101-12-100758 is properly accorded to the Protestant pursuant to 19 CFR 174.24(a).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the 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 be applied in order.
The following subheadings of the HTSUS are under consideration in this case:
8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408:
8409.99 Other:
8409.99.91 For vehicles of subheading 8701.20, or heading 8702, 8703 or 8704 . . . .
8409.99.99 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
GRI 6 provides the following:
For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.
ARI Note 1(a) provides the following:
1. In the absence of special language or context which otherwise requires--
(a) 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;
Section XVI, Note 2 of the HTSUS is as follows:
2. Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;
(c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8487 or 8548.
There is no dispute that the products at issue are classified under heading 8409 by application of GRI 1, ARI 1(a), and Note 2(b) to Section XVI.
The Protestant asserts that the diesel engine cylinder liners are classifiable under subheading 8409.99.99 of the HTSUS as other parts suitable for use solely or principally with engines of heading 8407 or 8408. The Protestant contends that the cylinder liners “are parts for diesel engines that at the time of importation do not yet have a specific use.” The importer has provided general information that indicates that cylinder liners like those at issue here have been incorporated into diesel engines that are in turn installed into vehicles classified under provisions that are not listed in HTSUS subheading 8409.99.91.
Subheading 8701.20 is for “road tractors for semi-trailers” and is applicable in that the cylinder liners could be installed in such vehicles if they are equipped with diesel engines. Heading 8702 is for “motor vehicles for the transport of ten or more persons, including the driver.” Heading 8703 is for “motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars.” Heading 8704 is for “motor vehicles for the transport of goods.” Again, as with subheading 8701.20, headings 8702, 8703, and 8704 could be applicable in that they cover vehicles that may feature diesel engines.
However, no evidence is shown to clearly indicate that the subject cylinder liners were, as imported, principally used for the vehicles specifically noted in subheading 8701.20, and headings 8702, 8703, and 8704 as opposed to a diesel engine for any type of machine. Therefore, we find that the subject cylinder liners for diesel engines are properly classified under HTSUS subheading 8409.99.99 as “parts suitable for use solely or principally with engines of heading 8407 or 8408: Other: Other: Other....”
HOLDING:
The Cylinder Liners for Diesel Engines are properly classified under heading 8409, HTSUS. Specifically, they are classified under subheading 8409.99.99, HTSUS, which provides for “Parts suitable for use solely or principally with engines of heading 8407 or 8408: Other: Other: Other....” The general column one rate of duty, for merchandise classified in this subheading is free.
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.usitc.gov.
The Protest should be GRANTED in accordance with the LAW AND ANALYSIS above. A copy of this ruling should be attached to the CBP Form 19 or equivalent document and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division