CLA-2 OT:RR:CTF:TCM H020958 GC
U.S. Customs and Border Protection
Buffalo Service Port
726 Exchange Street, Suite 400
Buffalo, New York 14210
Attn: Supervisory Import Specialist
RE: Tariff classification of woven textile tape; Protest Number 0901-07-100203
Dear Port Director:
This letter is in reply to your memorandum, dated December 10, 2007, forwarding protest and application for further review number 0901-07-100203, dated May 22, 2007, filed by counsel on behalf of its client, Scapa Tapes North America, Ltd. (Scapa). The protest is against Customs and Border Protection’s (CBP) classification and subsequent liquidation of two entries of woven textile tape under the Harmonized Tariff Schedule of the United States (HTSUS). In preparation of this ruling, consideration was also given to the substance of a phone conference with Scapa and counsel taking place on October 23, 2008, as well as a supplementary written submission by counsel to Scapa, dated October 30, 2008.
The merchandise at issue (style number 164) was entered on March 9, 2006 and May 12, 2006. On January 12, 2007 and March 16, 2007, CBP liquidated the merchandise, as entered, under heading 5906, HTSUS, which provides for, “[r]ubberized textile fabrics, other than those of heading 5902”. In its protest, Scapa seeks classification in heading 8708, HTSUS, which provides for, “[p]arts and accessories of the motor vehicles of headings 8701 to 8705”.
Scapa has stated that the subject merchandise is “made of black cotton cloth single coated with a black natural rubber pressure sensitive adhesive…” The sample provided is a black textile fabric coated with an adhesive on one side. It has been presented in roll form, and the length of the tape is not specified. The inside of roll identifies Scapa and the country of origin.
Scapa states that the subject tape has been specially designed and manufactured for automotive wire harness use. In particular, the tape is used to bind wires together in an organized and cohesive way, and protects the electrical connections that connect to the wire harness. According to Scapa, the subject tape is engineered to withstand high automotive temperatures, resist fluids that might come into contact with it in the engine compartment, and attenuate noise and vibration in the interior instrument panel, door panel and overhead areas (i.e. minimize squeaks). Scapa has provided the specifications of two automotive suppliers for tape used to bind wire harnesses. These specifications mandate compatibility with respect to color, width, thickness, electrical compatibility, adhesion to steel and adhesion to the backing of the tape. Both specifications list Scapa among the tape suppliers who meet the applicable criteria for cotton tape. Scapa also states that “nearly all” of the subject tape is sold for automotive wire harness use.
What is the proper classification under the HTSUS for the subject merchandise?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. Pursuant to 19 U.S.C. §1514(c)(3), the protest was timely filed on May 22, 2007, within 180 days of liquidation of the subject entries.
Further review of Protest 0901-07-100203 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(a), the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise.
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 following 2006 HTSUS provisions under consideration are:
5906 Rubberized textile fabrics, other than those of heading 5902:
5906.10.0000 Adhesive tape of a width not exceeding 20cm…
* * *
8544 Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors:
8544.30.0000 Ignition wiring sets and other wiring sets of a kind used in vehicles, aircraft or ships…
* * *
8546 Electrical insulators of any material:
* * *
8548 Waste and scrap of primary cells, primary batteries and electric storage batteries; spent primary cells, spent primary batteries and spent electrical storage batteries; electrical parts of machinery or apparatus, not specified or included elsewhere in this chapter:
* * *
8708 Parts and accessories of the motor vehicles of headings 8701 to 8705:
Other parts and accessories of bodies (including cabs):
Note 3 to Section XVII, HTSUS, which covers heading 8708, HTSUS, states the following, in pertinent part: “[r]eferences in Chapters 86 to 88 to ‘parts’ or ‘accessories’ do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters.”
Additional U.S. Rule of Interpretation 1(c) states that, in the absence of special language or context which otherwise requires, “a provision for parts of an article covers products solely or principally used as 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 Harmonized Commodity Description and Coding System Explanatory Note (EN) to heading 8543, HTSUS, supports this conclusion. In understanding the language of the HTSUS, the ENs may be utilized. The ENs, though not dispositive or legally binding, may provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
With respect to the scope of heading 8708, HTSUS, it is stated in EN 87.08 that:
This heading covers parts and accessories of the motor vehicles of headings 87.01 to 87.05, provided the parts and accessories fulfil both of the following conditions:
They must be identifiable as being suitable for use solely or principally with the above-mentioned vehicles; and
They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note). (Emphasis in original).
General EN (III)(C) to section XVII, HTSUS, provides that “[p]arts and accessories, even if identifiable as for the articles of this Section, are excluded if they are covered more specifically by another heading elsewhere in the Nomenclature…” (Emphasis in original).
Therefore, in light of Note 3 to section XVII, HTSUS, its corresponding EN, EN 87.08, and Additional U.S. Rule of Interpretation 1(c), for the subject merchandise to be classified under heading 8708, HTSUS, it must be identifiable as solely or principally used with the vehicles of headings 8701, HTSUS, and 8705, HTSUS, and cannot be excluded by the provisions of the Notes to Section XVII, and cannot be covered more specifically by another heading elsewhere in the HTSUS.
Scapa argues that the tape is a part or accessory to a motor vehicle because it enhances the effectiveness of automotive wire harness systems or facilitates its use. As support for the proposition that the subject merchandise constitutes an “accessory” under the terms of 8708, HTSUS, Scapa cites to Headquarters Ruling Letter (HQ) 082976, dated March 20, 1990 (concerning the tariff classification of a “bumper sticker holder” of heading 3919, HTSUS), in which it is noted that, “accessories are not needed to enable the goods with which they are used to fulfill their intended function. They must, however, somehow contribute to the effectiveness of the principal article (e.g. facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation).”
Scapa also cites to New York Ruling Letter (NY) N035802, dated September 2, 2008, which concerned the tariff classification under the HTSUS of four parts used in the construction of the 2009 Genesis motor vehicle. In NY N035802, CBP classified the “Trim Assy-Package Tray with HMS” (part number 85620-3M600-BR) in heading 8708, HTSUS. In so doing, CBP stated that in accordance with Note 3 to Section XVII, parts and accessories classifiable in Section XVII and elsewhere in the HTSUS will be classified by their principal use. NY N035802 has been modified by HQ H043156, dated October 31, 2008, in which we clarified that Note 3 to Section XVII, HTSUS, serves to exclude parts and accessories not suitable for use solely or principally with motor vehicles. Because the “Trim Assy-Package Tray with HMS” was suitable for use solely or principally with motor vehicles, Note 3 to Section XVII, HTSUS, did not apply. While Note 3 to Section XVII, HTSUS, excludes “parts and accessories” that are not suitable for use solely or principally with motor vehicles, it does not mandate classification of articles specified elsewhere in the HTSUS (i.e. heading 5906, HTSUS, for the subject tape) simply because they are suitable for use solely or principally with motor vehicles.
Counsel for Scapa also highlighted several additional rulings in support of its position “that articles are classified as parts and accessories of principal articles even if there are other uses for such items”. See NY I88219, dated November 5, 2002 (“wire harness strap” classifiable under heading 8708, HTSUS); NY I86147, dated September 17, 2002 (“textile seat strap for airbags” classifiable under heading 9401, HTSUS); and NY E85999, dated August 23, 1999 (“plastic adhesive stone guard classified under heading 8708, HTSUS).
In the instant case, the subject tape facilitates the use of the wire harness, which is used in motor vehicles. Here, the “primary article” is the wire harness, not a motor vehicle. As a part or accessory to a wire harness, it cannot be classified under heading 8708, HTSUS, as a part or accessory to a car because the tape facilitates the function of the wire harness, not a motor vehicle. In this regard, we are guided by Mitsubishi Electronics America, Inc. v. United States, 19 C.I.T. 378 (1995) (Mitsubishi), wherein the Court of International Trade discussed whether a clutch is classifiable as a part of an automobile. The court stated:
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 a 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 that are parts of winches are more specifically provided for as parts of clutches than as parts of winches). Mitsubishi, 19 C.I.T. at 383 n.3. See also HQ H005091, dated January 24, 2007; HQ 963325, dated September 15, 2000.
Auto wire harnesses are classifiable in heading 8544, HTSUS, which does not have a parts and accessories provision. Consequently, parts (such as tape) are excluded from heading 8544, HTSUS. See EN (II) to Section XVI, HTSUS.
In its submission following our phone conference, counsel for Scapa requests classification in heading 8546, HTSUS, which provides for, “[e]lectrical insulators of any material”, or heading 8548, HTSUS, which provides for, in pertinent part, “[electrical parts of machinery or apparatus, not specified or included elsewhere in this chapter”.
In support of the proposition that the subject tape fits within the scope of heading 8546, HTSUS, counsel for Scapa cites NY F86653, dated May 24, 2000, which pertains to the tariff classification of wire connector nuts that are placed over the joined ends of separate exposed wires to ensure a tight connection and provide insulation. Counsel also points to HQ 958140, dated August 31, 1995, which concerns similar merchandise. In addition, counsel for Scapa points us toward NY E86494, dated September 23, 1999, which pertains to the classification of electrical insulator boot assemblies (also known as spark plug boots) that are used are placed over the connection between the spark plug and the ignition cable terminal.
Heading 8546, HTSUS, is an eo nomine provision. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis (of the same class or kind) instructs that "where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States, 10 CIT 154, 156 (1986)." As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms." Id. at 157. None of the items discussed in the rulings cited by Scapa are similar to the subject tape. While the tape maybe capable of providing an ancillary insulation function, it is clear from Scapa’s submissions that the subject merchandise functions primarily to fix wiring harnesses in the desired location within the panels of automobiles, not to insulate the electricity that passes through the wires. It is also noteworthy that there is not a single instance of tape being classified as an electrical insulator under heading 8546, HTSUS. Accordingly, we find that the subject tape does not fit the terms of heading 8546, HTSUS.
Counsel provides no evidence or explanation in support of classification in heading 8548, HTSUS, which provides for, inter alia, “…electrical parts of machinery or apparatus, not specified or included elsewhere in this chapter”, other than to state that if the subject tape is not an insulator of heading 8546, HTSUS, “it is still part of a wiring harness, considered a part of a wiring harness, and thus within [heading 8548, HTSUS]”. Per the terms of heading 8548, HTSUS, the merchandise covered therein must be electrical. See also Note 2(c) to Section XVI, HTSUS. The instant merchandise is not electrical and is thus excluded. Furthermore, heading 8548, HTSUS, is a basket provision which cannot take precedence over an eo nomine provision. See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1380 (Fed. Cir. 1999).
Accordingly, the subject tape does not fit the terms of headings, 8546, 8548, or 8708, HTSUS. It is specifically provided for in heading 5906, HTSUS.
By application of GRI 1, and Additional U.S. Rule of Interpretation 1(c), the subject merchandise is classified under heading 5906, HTSUS, and specifically provided for in subheading 5906.10.0000, HTSUS, which provides for: “[r]ubberized textile fabrics, other than those of heading 5902: Adhesive tape of a width not exceeding 20cm.” The column one, general rate of duty at the time of entry was 2.9 percent ad valorem.
The protest should be DENIED. 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division