CLA–2 OT:RR:CTF:TCM H265027 CKG
RE: Internal Advice 15/009; Classification of foam friction pads
Port Director
U.S. Customs and Border Protection
526 Water Street - Room 301
Port Huron, MI 48060-5471
ATTN: Jane Borntrager
Dear Port Director,
This is in regard to a request for Internal Advice, dated March 20, 2015, filed on behalf of SUSPA, Inc., regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of foam friction pads.
FACTS:
The products at issue are friction pads for washing machine suspensions. The pads are imported in different shapes and sizes depending on the specific machine they are to be used with. They are made from a micro-cellular polyurethane elastomer. The finished pads are formed and cut from larger foam blocks (which are sliced into plates with different thicknesses for different applications) via a water jet cutting process. The finished pads are shaped either as a cylinder with a through hole or as a rectangular block.
The specific items at issue are identified by the requestor as follows:
SUSPA part no. P61-00255: “Damping Foam MD” - Cylinder, 18mm high, 17 mm diameter, with a through hole of 2.9 mm in diameter.
SUSPA part no. P61-00268: “Foam 25.9x4.2x17.5 Alliance” - Cylinder, 11.5mm high, 25.9mm in diameter, with a through hole of 17.5mm in diameter.
SUSPA part no. P61-30009B: “Fric pad, dia 26.1x4.2, H Line” - Cylinder, 11.5mm high, 25.9mm in dimeter, with a through hole of 17.5mm
SUSPA part no. P61-00259: “Friction pad - Rectangle, 4.5 x 11.75 x 69.5mm”
SUSPA part no. P61-0027A: “Friction pad, 6mm wide – Rectangle, 4.7x 6.0 x 69.5mm”
ISSUE:
What is the correct classification of the instant foam friction pads under the HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of
Interpretation (GRI). GRI 1 provides that classification 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 provisions under consideration are as follows:
3920: Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials
3921: Other plates, sheets, film, foil and strip, of plastics
3926: Other articles of plastics and articles of other materials of headings 3901 to 3914
8450: Household or laundry-type washing machines, including machines which both wash and dry; parts thereof
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Additional U.S. Rule of Interpretation 1(c) provides as follows:
In the absence of special language or context which otherwise requires—
(c) 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[.]
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Note 10 to Chapter 39 provides:
In headings 39.20 and 39.21, the expression “plates, sheets, film, foil and strip” applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).
* * * *
The importer argues that the subject merchandise is classified as parts of washing machines under subheading 8450.90.60, HTSUS.
The courts have considered the nature of “parts” under the HTSUS and two distinct though not inconsistent tests have resulted. See Bauerhin Techs. Ltd. v. United States (“Bauerhin”), 110 F. 3d 774 (Fed. Cir. 1997). The first, articulated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), requires a determination of whether the imported item is 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 778 (quoting Willoughby, 21 C.C.P.A. 322 at 324). The second, set forth in United States v. Pompeo (“Pompeo”), 43 C.C.P.A. 9, 14 (1955), states that an “imported item dedicated solely for use with another article is a ‘part’ of that article within the meaning of the HTSUS.” Id. at 779 (citing Pompeo, 43 C.C.P.A. 9 at 13). Under either line cases, an imported item is not a part if it is “a separate and distinct commercial entity.” Bauherin, 110 F. 3d at 779.
The instant friction pads are dedicated for use solely or principally with specific suspensions for specific models of washing machines. Although the washing machines are capable of performing their basic washing function without the friction pads, the lack of these pads would cause damage to the washing machine and its surroundings; without something to absorb the mechanical energy of the washer, the moving washing machine will collide against any surrounding cabinets and walls. The friction pads are not a distinct commercial entity in that they do not appear to be sold separately and they are shaped to fit specific models of washing machine; their use is therefore limited to this very specific application. Thus, the instant friction pads are all described by heading 8450, HTSUS, as parts of household or laundry type washing machines.
However, this does not end the inquiry. Additional U.S. Rule of Interpretation 1(c) provides that a provision for “parts” or “parts and accessories” shall not prevail over a specific provision for such part or accessory. In the instant case, there are specific provisions that describe part nos. P61-00255, P61-00259, and P61-0027A, and which therefore prevail over heading 8450, HTSUS with respect to the classification of these items.
Specifically, part Nos. P61-00259 and P61-0027A are described by heading 3921, HTSUS, as other plates, sheets, film, foil and strip of plastics. Note 10 to Chapter 39 states that the expression “plates, sheets, film, foil and strip” as used in In headings 39.20 and 39.21, applies to “blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use).” Part Nos. P61-00259 and P61-0027A are blocks of regular geometric shape, cut into rectangles, and not further worked. They therefore meet the definition of plates, sheets, film, foil and strip of plastic as set out in Note 10 to Chapter 39. As they are made of cellular plastic, P61-00259 and P61-0027A are excluded from heading 3920, HTSUS (which provides only for plates, sheets, etc. of non-cellular plastic), and classified in heading 3921, HTSUS. Because they are specifically provided for by name elsewhere in the tariff, they are not classified as parts in heading 8450, HTSUS.
With respect to part nos. P61-00255, P61-00268, and P61-30009B, as cylindrical shapes they are not described by headings 3920 or 3921, HTSUS, nor are they specified elsewhere in Chapter 39; they are only described by headings 3926, HTSUS, and 8450, HTSUS. Heading 3926, HTSUS, is a general heading or basket provision, as evidenced by the word “other.” See The Item Company v U.S., 98 F. 3d 1294, 1296 (CAFC 1996). Classification of imported merchandise in a basket provision is only appropriate if there is no tariff category that covers the merchandise more specifically. See EM Industries v. U.S. , F. Supp. 1473, 1480 (1998) ("'Basket' or residual provisions of HTSUS Headings . . . are intended as a broad catch-all to encompass the classification of articles for which there is no more specifically applicable subheading."). A “basket” provision is not considered more specific than a parts provision pursuant to Additional U.S. Rule of Interpretation 1(c). See e.g., HQ 965401, dated April 22, 2002. Thus, because part nos. P61-00255, P61-00268 and P61-30009B are not provided for more specifically elsewhere in the tariff, they are classified in heading 8450, HTSUS, as parts of washing machines.
HOLDING:
By application of GRIs 1 and 6, the foam friction pads at issue are classified as follows:
SUSPA part nos. P61-00259 and P61-0027A are classified in heading 3921, HTSUS, specifically subheading 3921.13.50, HTSUS, which provides for “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of polyurethanes: Other.” The 2016 column one, general rate of duty is 4.2% ad valorem.
SUSPA part nos. P61-00255, P61-00268 and P61-30009B are classified in
heading 8450, HTSUS, specifically subheading 8450.90.60, HTSUS, which provides for “Household or laundry-type washing machines, including machines which both wash and dry: Parts.” The 2016 general, column one rate of duty is 2.6% ad valorem.
Duty rates are provided for the internal advice applicant’s convenience and are
subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the public version of the decision available to CBP personnel, and to the public on the CBP Home Page online at www.CBP.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division