CLA-2 OT:RR:CTF:EMAIN H310746 NVF
Port Director, U.S. Customs and Border Protection
Port of Savannah
1 East Bay Street
Savannah, GA 31401
Attn: La-Tera Latimore, Import Specialist
RE: Application for Further Review of Protest No. 1703-20-103344; Classification of Automobile Bracket Lifts, Bracket Clamps, Bracket Cable Mountings, Backplate Assemblies, and Breather Assemblies.
Dear Port Director:
This letter is in response to the Application for Further Review (“AFR”) of Protest No. 1703-20-103344, timely filed by Sandler, Travis & Rosenberg, PA on behalf of protestant, Briggs & Stratton Corporation (“Briggs”). The protest contests the classification and liquidation by Customs and Border Protection of: 1) bracket lifts, bracket clamps, and bracket cable mountings under heading 7326 of the Harmonized Tariff Schedule of the United States (“HTSUS”), 2) backplate assemblies under heading 8483, HTSUS, and 3) breather assemblies under heading 8481, HTSUS.
In reaching the below determination, we have considered information presented in the protest and AFR, supplemental information provided by Briggs on November 13, 2020, information provided during the conference between counsel for Briggs and CBP on December 9, 2020, and publicly available information.
FACTS:
The imports at issue are described by Briggs as follows:
Bracket Lifts, Bracket Clamps, and Bracket Cable Mountings – The bracket lifts are a metal-stamped part of light-gauge steel that connect to the engine using screws and/or bolts and support part of the engine’s fuel system (mainly the fuel pump). The bracket clamps are metal stampings made of light-gauge steel which connect an external air cleaning system to the engine. The bracket cable mountings are also a stamped metal part of light-gauge steel and connect throttle and engine control cables to the outside of the engine.
Backplate Assemblies – The backplate assembly is a stamped metal plate made of light-gauge steel with specific openings to allow for parts to protrude from the engine, where needed, while covering the lower portion of the engine.
Breather Assemblies – The breather assembly is made of light gauge steel with a rubberized plastic gasket in the center. It allows the engine to appropriately vent crankcase pressure out of the engine. It allows the engine piston rings to seal tighter against the cylinder walls, ultimately providing for smoother operation of the engine.
The subject merchandise was imported between March 8, 2019 and September 29, 2019. CBP liquidated the entries on January 24, 2020, February 7, 2020, and February 28, 2020. Briggs timely filed a protest and Application for Further Review (“AFR”) on March 5, 2020. In its protest, Briggs asserts that all of its imports should be classified under heading 8409, HTSUS as parts suitable for use solely or principally with the engines of heading 8407 or 8408.
ISSUES:
Whether the bracket lifts, bracket clamps, and bracket cable mountings are classified under heading 7326, HTSUS as other articles of iron or steel or under heading 8409, HTSUS as parts suitable for use solely or principally with the engines of heading 8407 or 8408.
Whether the backplate assemblies are classified under heading 8483, HTSUS as parts of a gearing or under heading 8409, HTSUS as parts suitable for use solely or principally with the engines of heading 8407 or 8408.
Whether the breather assemblies are classified under heading 8481, HTSUS as valves and similar appliances or under heading 8409, HTSUS as parts suitable for use solely or principally with the engines of heading 8407 or 8408.
LAW AND ANALYSIS:
We observe as an initial matter that the matters protested are protestable under 19 U.S.C. § 1514(a)(2) as decisions on classification and amount of duties chargeable. The subject merchandise was entered by Briggs between March 8, 2019 and September 29, 2019. CBP liquidated the entries on January 24, 2020, February 7, 2020, and February 28, 2020. Briggs timely filed a protest and AFR on March 5, 2020, within 180 days of liquidation of the first entry. Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006). Further review of the protest is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all classification purposes.
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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
Additional U.S. Rule of Interpretation 1(c) states that “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.”
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.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
Generally speaking, Briggs argues that all of its imports are designed for and used exclusively in spark-ignition internal combustion piston engines and therefore should be classified under heading 8409, HTSUS, as parts suitable for use solely of principally with engines of heading 8407 or 8408. As support for its position, Briggs cites to NY N302189 (Feb. 8, 2019) (engine assembly without an alternator or starter), NY N125121 (Oct. 14, 2010) (intake manifold), HQ 954102 (Mar. 15, 1994) (vehicle throttle cables), and HQ H209835 (July 20, 2015) (machine sleeved cylinder liners), in which various items were classified under heading 8409, HTSUS. Briggs contends that the aforementioned rulings stand for the proposition that items specifically designed to be used in conjunction with engines are classified under heading 8409. Briggs also argues that in HQ H209925, CBP established that parts manufactured for a particular use cannot be classified as parts of general use.
Briggs also refers to NY I84866 (Aug. 16, 2002) (metal control bracket used in a lawnmower), NY I84869 (Aug. 23, 2002) (engine mufflers and muffler adaptors for riding lawn mowers), and NY 871906 (Mar. 13, 1992) (generator mufflers). Briggs argues that CBP applied the same logic in these rulings, and therefore an item designed for use exclusively with a machine is classified as a part of that machine.
Bracket Lifts, Bracket Clamps, and Bracket Cable Mountings
The HTSUS headings under consideration are as follows:
7326 Other articles of iron or steel.
8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408.
Note 1(f) to Section XV (which encompasses heading 7326) states that Section XV does not cover articles of Section XVI (which encompasses heading 8409). Therefore we must first determine whether the subject bracket lifts, bracket clamps, and bracket cable mountings are classified under heading 8409 as parts suitable for use solely or principally with engines of heading 8407 or 8408.
For tariff classification purposes, a spark-ignition internal combustion engine consists only of certain components and parts. See HQ 963386 (June 16, 1999) (accelerator and throttle cables are not part of an engine). EN 84.07 states that engines of heading 8407 generally consist of the following: cylinder, piston, connecting-rod, crankshaft, flywheel, inlet and exhaust valves. In such engines, the piston compresses a mixture of air and fuel in the cylinder and the fuel mixture ignites inside the cylinder. Thus, engine parts are limited to the components that contribute to the internal combustion function. It is well established that all other vehicle components which may operate in conjunction with an engine, such as (but not limited to) the sparkplugs, transmission, fuel system and brake system are separate and distinct commercial entities for classification purposes.
In this case, the bracket lifts are used to hold the fuel assembly to the engine. They connect to the outside of the engine and provide support for the fuel assembly. The bracket lifts do not act on any of the principal engine components, such as the piston, crankshaft or cylinder. Rather, it acts to secure a separate and external component, the fuel assembly, to the engine. The bracket lifts are not an integral, constituent part of an engine and an engine does not need bracket lifts to hold and ignite fuel. Therefore the bracket lifts are not an engine part.
Similarly, the bracket clamps and bracket cable mountings are not a part of an engine, but secure an air cleaning system and various cables to the engine. While these items may be designed to be incorporated into a vehicle, they do not act on the engine and are not integral, constituent parts of the engine. The engine can burn fuel without the bracket clamps and bracket cable mountings. Therefore, the bracket clamps and bracket cable mountings are not classified as engine parts of heading 8409, HTSUS, under the tests established in Bauerhin, Willoughby, and Pompeo.
In light of the above, the bracket lifts, bracket clamps, and bracket cable mountings are classified in heading 7326, HTSUS as other articles of iron or steel.
Backplate Assemblies
The HTSUS headings under consideration are as follows:
8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408.
8483 Transmission shafts (including camshafts and crankshafts) and cranks; bearing housings, housed bearings and plain shaft bearings; gears and gearing; ball or roller screws; gear boxes and other speed changers, including torque converters; flywheels and pulleys, including pulley blocks; clutches and shaft couplings (including universal joints); parts thereof.
As stated above, Additional U.S. Rule of Interpretation 1(c) states that “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.”
Note 2 to Section XVI, states, in pertinent part, that:
Parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8505, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
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….
Furthermore, in conducting our analysis, we are mindful that in Mitsubishi Electronics America v. United States, 19 CIT 378, 383 n.3 (1995) the Court of International Trade stated that:
The Court notes that if the subject merchandise is not a clutch, but rather a part of a starter motor, then it cannot be classified as part of an automobile, even though it is used solely in automobiles. This is because a subpart of a particular part of an article is more specifically provided for as a part of the part than as a part of the whole. C.F. Liebert v. United States, 60 Cust. Ct. 677, 686-87, 287 F. Supp. 1008, 1014 (1968) (holding that parts of clutches which are parts of winches are more specifically provided for as parts of clutches than as parts of winches).
That no heading of Section XVI provides for the backplate assemblies as goods themselves is not in dispute. As such, the classification of the backplate assemblies is governed by Note 2(b) to Section XVI, supra. However, before the backplate assemblies can be classified as a part of an engine (i.e. part of a whole), we must first determine whether it is suitable for use solely or principally with another component provided for in Section XVI, HTSUS (i.e. part of a part).
Heading 8483, HTSUS provides for: Transmission shafts (including camshafts and crankshafts) and cranks; bearing housings, housed bearings and plain shaft bearings; gears and gearing; ball or roller screws; gear boxes and other speed changers, including torque converters; flywheels and pulleys, including pulley blocks; clutches and shaft couplings (including universal joints); parts thereof.
In this case, Briggs indicates that the backplate assemblies function as a cover for gears. Briggs Protest at Attachment D. Gears are specifically provided for in heading 8483, HTSUS. It is well established that covers, housings, and cases enhance the safe and efficient operation of the item for which it is designed. See, e.g., HQ H242029 (Sep. 8, 2014); NY N1999015 (Jan. 10, 2012); NY N013046 (July 2, 2007); NY L87501 (Sep. 16, 2005). In CBP Headquarters Ruling Letter (“HQ”) 967688 (December 15, 2005), we held that leveling mounts, used to level and support equipment and machinery, were parts that were necessary for the operation of the machinery “because they clearly enhance the safe and efficient operation of machines to which they are attached.” The ruling further states the following, citing HQ 962634 (October 25, 2001):
CBP generally will consider an article to be a part if: it is combined with other articles to be used; or it is an integral, constituent or component part, without which the article to which it is joined could not function; or it aids in the safe and efficient operation of the main article; or it is identifiable by shape or other characteristics as an article solely or principally used as a part. In contrast, CBP generally will consider an article to be an accessory if: it facilitates use or handling; or it widens the range of uses of the main article; or it is not needed to enable the goods with which it is used to fulfill its intended function; or it is identifiable as being intended solely or principally for use with a specific article.
Here, we have items that cover the gears, providing for the gears’ safe and efficient operation. They are directly integral to the function of the gearing inasmuch as they are designed to cover, house, or hold engine gearing and their function renders them part of the gearing. Therefore, in light of Mitsubishi, the backplate assemblies are classified as a part of a part, specifically part of a gear, rather than a part of the engine as a whole.
Briggs’ reliance on our prior rulings is misguided. NY N302189 classified engines with and without an alternator and starter, NY N125121 classified an intake manifold, HQ 954102 classified throttle cables, and HQ H209835 classified cylinder liners. All of the aforementioned goods have different functions from the gear cover at issue here and therefore the cases are not comparable. Briggs argues that these rulings stand for the proposition that a part specifically designed to eventually function with or be incorporated into an engine is therefore classified as part of the engine. This argument overlooks our obligation under Mitsubishi to classify parts with the particular (i.e. most proximate) machines for which they are suitable for sole or principal use.
In light of the above, the backplate assemblies are classified in heading 8483, HTSUS as transmission shafts (including camshafts and crankshafts) and cranks; bearing housings, housed bearings and plain shaft bearings; gears and gearing; ball or roller screws; gear boxes and other speed changers, including torque converters; flywheels and pulleys, including pulley blocks; clutches and shaft couplings (including universal joints); parts thereof.
Breather Assemblies
The HTSUS headings under consideration are as follows:
8409 Parts suitable for use solely or principally with the engines of heading 8407 or 8408.
8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof.
As discussed above, per Note 2(a) to Section XVI and Additional U.S. Rule of Interpretation 1(c), before an article can be classified under heading 8409, HTSUS as a part of an engine, we must first determine whether it is specifically provided for in another heading of the HTSUS.
In prior communications with CBP, Briggs referred to the breather assembly as a “reed valve”. Briggs Protest at Attachment I. The working principle of the reed valve is such that when an engine piston moves in a downward position, the reed valve opens and air exits, and when the piston moves in an upward direction, the valve closes to prevent air movement. Therefore the reed valve functions as a check valve that allows air to flow in one direction.
Heading 8481, HTSUS, provides for, eo nomine, valves and parts thereof. We observe that EN 84.81 states in pertinent part that:
Valves remain in this heading even if specialized for use on a particular machine or apparatus. However, certain machinery parts which incorporate a complete valve, or which regulate the flow of a fluid inside a machine although not forming a complete valve in themselves, are classified as parts of the relative machines, for example, inlet or exhaust valves for internal combustion engines (heading 84.09).
Therefore, the fact that the breather valves are specialized for use in a particular machine does not exclude it from classification in heading 8481, HTSUS. As such, the breather assembly is classified in heading 8481, HTSUS which expressly provides for valves, by operation of Note 2(a) to Section XVI. The presence of the mounting plate, which is used to connect the valve to the engine, does not cause the instant breather assembly to fall outside of the scope of heading 8481, HTSUS. Without the plate, the valve cannot be held in position for it to perform its function as a reed valve. Assuming arguendo that the breather assembly did fall outside the scope of heading 8481, HTSUS, it would not be classifiable as a part of an engine per Note 2(b) to Section XVI because the breather assembly at issue is not an integral, constituent part of an engine. At best, the breather assembly assists the pistons in operating more efficiently, but the breather assembly is not necessary for the pistons or the engine itself to function. Hence it cannot be classified as part of an engine.
In light of the above, the breather assembly is classified in heading 8481, HTSUS as taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof.
HOLDING:
By application of GRIs 1 and 6, the bracket lifts, bracket clamps and bracket cable mountings are classified under heading 7326, specifically subheading 7326.90.86, HTSUS, which provides for: Other articles of iron or steel: Other: Other: Other. The general column one rate of duty is 2.9% ad valorum.
By application of GRIs 1 (Note 2(b) to Section XVI) and 6, the backplate assemblies are classified under heading 8483, specifically subheading 8483.90.50, HTSUS, which provides for: Transmission shafts (including camshafts and crankshafts) and cranks; bearing housings, housed bearings and plain shaft bearings; gears and gearing; ball or roller screws; gear boxes and other speed changers, including torque converters; flywheels and pulleys, including pulley blocks; clutches and shaft couplings (including universal joints); parts thereof: Toothed wheels, chain sprockets and other transmission elements presented separately; parts: Parts of gearing, gear boxes and other speed changers. The general column one rate of duty is 2.5% ad valorum
By application of GRIs 1 (Note 2(a) to Section XVI) and 6, the breather assemblies are classified under heading 8481, specifically subheading 8481.30.20, HTSUS, which provides for: Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof: Check (nonreturn) valves: Of iron or steel. The general column one rate of duty is 5% ad valorum.
Effective July 6, 2018, the Office of the United States Trade Representative (USTR) imposed an additional tariff on certain products of China classified in the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(b), HTSUS. The USTR imposed additional tariffs, effective August 23, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(d), HTSUS. Subsequently, the USTR imposed further tariffs, effective September 24, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(f) and U.S. Note 20(g), HTSUS. For additional information, please see the relevant Federal Register notices dated June 20, 2018 (83 Fed. Reg. 28710), August 16, 2018 (83 Fed. Reg. 40823), and September 21, 2018 (83 Fed. Reg. 47974). Products of China that are provided for in subheading 9903.88.01, 9903.88.02, 9903.88.03, or 9903.88.04 and classified in one of the subheadings enumerated in U.S. Note 20(b), U.S. Note 20(d), U.S. Note 20(f) or U.S. Note 20(g) to subchapter III shall continue to be subject to antidumping, countervailing, or other duties, fees and charges that apply to such products, as well as to those imposed by the aforementioned Chapter 99 subheadings.
Products of China classified under subheadings 7326.90.86, 8481.30.20, and 8483.90.50, HTSUS, unless specifically excluded, are subject to the additional 25 percent ad valorem rate of duty. At the time of importation, the pertinent Chapter 99 subheading must be reported in addition to subheadings 7326.90.89, 8481.30.20, and 8483.90.50, HTSUS, listed above.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, 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 CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division