CLA-2 OT: CTF: TCM: H255855 ERB
Area Port Director, Port of Seattle
U.S. Customs and Border Protection
1000 Second Avenue, Suite 2100
Seattle, WA 98104-1020
Attn: Millissa Nixon, Import Specialist
RE: Application for Further Review of Protest Number 3001-14-100196; Tariff classification of “D-Sub” Back Shells
Dear Area Port Director:
This letter is in reply to the Application for Further Review (AFR) of Protest Number 3001-14-100196, timely filed May 13, 2014, by counsel on behalf of Continental Home Hardware (Continental). The AFR is against U.S. Customs and Border Protection’s (CBP) classification of the subject “D-Sub” backshells under subheading 7616.99.50, of the Harmonized Tariff Schedule of the United States (HTSUS). Samples were provided to this office.
FACTS:
The subject merchandise is identified as a “D-Sub” backshells in eighteen slightly different configurations. The differences among the backshell models are only minor variances in the shape and size. All of the backshells are made of aluminum and are plated with an electroless nickel plating. This method and type of plating is common in engineering coating applications where wear resistance, hardness and corrosion protection are required. The subject backshells are designed and shaped to secure a cable via a clamp to the end of a connector within an aircraft in-flight entertainment system. A connector backshell is placed around the portion of a connector which contains the facilities for attaching wires or cables. It shields against electrical interference, mechanical injury or physical damage.
Continental made 18 entries of the subject “D-Sub” backshells between April 1, 2013 and September 24, 2013, classified under subheading 8803.30.00, HTSUS, which provides for, “Parts of goods of heading 801 or 8802: Other parts of airplanes or helicopters.” CBP liquidated 17 entries on November 15, 2013, and one entry on November 29, 2013, re-classifying the merchandise under subheading 7616.99.50, HTSUS, which provides for “Other articles of aluminum.” In its AFR, Continental argues that the goods are properly classified in heading 8803, HTSUS.
ISSUE:
Whether the subject merchandise is an article of aluminum under heading 7616, HTSUS, or whether it is a “part” of an electrical apparatus, of heading 8538, HTSUS, or whether it is a “part” of an aircraft, of heading 8803, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii)(codified as amended at 19 U.S.C. § 1514(c)(3)(2006)).
Further Review of Protest Number 3001-14-100196 is properly accorded to Continental 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 has not previously been ruled upon by CBP. Specifically, whether backshells are “parts” of aircraft.
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). GRI 1 requires that classification be determined first according to the terms of the heading of tariff schedule and any relative section or chapter notes, and unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration here are as follows:
7616 Other articles of aluminum:
7616.99 Other:
***
8538 Parts suitable for use solely or principally with the apparatus of heading 8535, 8536, or 8537:
8538.90 Other:
***
8803 Parts of goods of heading 8801 or 8802:
8803.30 Other parts of airplanes or helicopters:
Legal Note 2(b) to Section XVI states the following:
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:
***
(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, …or 8538 as appropriate. …
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System 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 EN to Section XVII, which covers vehicles, aircraft, vessels and associated transport equipment, and includes Chapter 88, provides the following in subpart (III) Parts and Accessories:
(III) Parts and Accessories
It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions:
They must not be excluded by the terms of Note 2 to this Section (see paragraph (A) below). And
They must be suitable for use solely or principally with the articles of chapter 86 to 99 (see paragraph (B) below). And
They must not be more specifically included elsewhere in the Nomenclature (see Paragraph (C) below).
Paragraph (B) noted above, provides the following:
(B) Criterion of sole or principal use.
Parts and accessories classifiable both in Section XVII and in another Section.
Under Section Note 3, parts and accessories which are not suitable for use solely or principally with the articles of Chapters 86 to 88 are excluded from those Chapters.
The effect of Note 3 is therefore that when a part or accessory can fall in one or more other Sections as well as in Section XVII, its final classification is determined by its principal use. Thus the steering gear, braking system, road wheels, mudguards, etc., used on many of the mobile machines falling in Chapter 84, are virtually identical with those used on the lorries of Chapter 87, and since their principal use is with lorries, such parts and accessories are classified in this section.
The EN 88.03 provides the following in relevant part:
This heading covers parts of goods falling in heading 88.01 or 88.02, provided the parts fulfill both the following conditions:
They must be identifiable as being suitable for use solely or principally with the goods of the above-mentioned headings; and
They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note [above]).
The General EN to Chapter 85, subpart (B) Parts states the following, in relevant part:
Non-electrical parts of the machines or apparatus of this Chapter are classified as follows:
(ii) Other non-electrical parts suitable for use solely or principally with a particular kind of electrical machine of this Chapter (or with a number of machines falling in the same heading) are to be classified with that machine (or those machines) or, if appropriate, in heading…85.28.
Heading 7616, HTSUS, is a basket provision, and classification of imported merchandise in a basket provision is only appropriate if there is no tariff category that covers the merchandise more specifically. See E.M. Chemicals v. United States, 923 F. Supp. 202, 206 (Ct. Int’l Trade 1996). See also GRI 3(a), HTSUS (“The heading which provides the most specific description shall be preferred to headings providing a more general description.”). Heading 8538, HTSUS, and heading 8803, HTSUS are “parts” provisions. Furthermore, pursuant to Note 3 to Section XVII, if the backshells are classifiable as parts of heading 8803, HTSUS, and are suitable for use solely or principally with aircraft, they are not classifiable in either heading 7616, HTSUS or heading 8538, HTSUS. Therefore, CBP will first address whether the imported goods are more specifically classifiable under headings 8538, HTSUS, or heading 8803, HTSUS.
In Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F. Supp. 554 (1995), aff’d 110 F.3d 774 (Fed. Cir. 1997), the U.S. Court of International Trade (CIT) pointed out that there are two distinct lines of cases defining the word “part” in the tariff. Starting with United States v. Willoughby Camera Stores, Inc. 21 CCPA 322, 324 (1933), T.D. 46075 (1933), cert. denied, 292 U.S. 640 (1934), this line of cases holds that a part of an article “is something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article.” Another line of cases evolved from United States v. Pompeo, 43 CCPA 9, C.D. 1669 (1955), where the Court held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed the article will not operate without it.
The definition of “parts” and was also discussed more recently, in Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247 (CIT 2000), aff’d 282 F.3d 1349 (CAFC 2002). In that case, the United States Court of Appeals for the Federal Circuit defined parts as “an essential element or constituent; integral portion which can be separated, replaced, etc.” Id at 1353 (citing Webster’s New World Dictionary 984 (3d College Ed. 1988)). The Court also noted that a part or accessory must also bear a direct relationship to the primary article. Rollerblade, Inc. v. United States, supra at 1253-54.
The subject “D-Sub” backshells do not in any way impact, affect, improve, or enhance the functionality of an aircraft. They are not an integral, constituent component, without which, the aircraft could not function as it is intended to function. It is used solely to provide strain relief and electro-magnetic interference suppression for wires routing into the aircraft’s in-flight entertainment system. Continental acknowledges as much in its submission where it states, “the backshells are not part of the in-fight entertainment system, but are instead designed specifically to make sure the in-flight entertainment system works properly.” (Continental submission page 3). Thus, as the subject backshells are not even a subpart of a part of an aircraft, they are certainly not a part of an aircraft. See Mitsubishi Elecs. Am. v. United States, 19 C.I.T. 378, 383 n.3 (Ct. Int’l Trade 1995), “This is because a subpart of a particular part of an article is more specifically provided for as a part of that part than as a part of the whole.” Citing 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.”). See also Headquarters Ruling (HQ) H238494, dated June 26, 2014, (classifying a Radio Navigational Rack System, designed for installation into a G550 Gulfstream Business Jet Model, which houses and supports a variety of aircraft management systems, including avionic and radio navigation systems. Each unit was made up of several individual shelves which include cables, connectors, indicators, relays, switches, wire harnesses and other electronic components that drive the airplane’s primary communication and radio navigational functions, which is essential to the function of an aircraft, in heading 8803, HTSUS).
Continental argues that the backshells have no use outside an airplane. The backshells may be dedicated solely for use within an in-flight entertainment system insofar as they augment a passenger’s flying experience, however, it cannot be said that that an aircraft will not function as such, absent the backshells. The article must be necessary to the completion of that article, and bear a direct relationship to the primary article, to be classified as a part. See generally, United States v. Willoughby Camera Stores Inc., supra, and Rollerblade, Inc. v. United States, supra. See also, New York Ruling (NY) N189210, dated November 9, 2011 (classifying a waste box, component part of the lavatory module of a civil aircraft under subheading 7323.93, HTSUS, and not heading 8803, HTSUS, because the waste box was not an integral part of an airplane).
CBP has also previously addressed the question of what constitutes parts of aircraft. In HQ 953562, dated October 7, 1993, we found that prefabricated lavatory modules were classifiable as parts of aircraft of heading 8803, HTSUS. There, we took into consideration the fact that toilet units and sanitary ware were specifically listed in “The Agreement on Trade in Civil Aircraft” which was promulgated in the Trade Agreements of 1979, and which is reflected in General Note 6 to the HTSUS. (Here, Continental does not make a request under the Civil Aircraft Agreement). The Agreement on Trade in Civil Aircraft makes no mention of in-flight entertainment, and further, the backshells are not mounted into the airplane structure as is a lavatory module. See 1986 ITC Lexis 312 (ITC 1986) at 269-286. Although the in-flight entertainment system may contribute to a pleasurable flying experience, it does not contribute to the machinations of the aircraft, nor does it contribute to the safe and efficient operation of the aircraft. See HQ H173197, dated November 13, 2012 (classifying fabric curtains for airplanes as a textile of heading 6303, HTSUS, and not as an airplane part of heading 8803, HTSUS).
Thus, as the backshells are not parts of aircraft, of heading 8803, HTSUS, then the EN to Section XVII, (III) Parts and Accessories, subpart (B), which outlines three criterion for classification therein is inapplicable to this analysis. In the same manner, the EN to 88.03, which requires parts classified therein fulfill both conditions noted, is not met here.
As mentioned above, the backshells are incorporated into the aircraft’s in-flight entertainment system. It is placed around the portion of a connector which contains the facilities for attaching wires or cables. It shields against electrical interference, mechanical injury, or physical damage due to environmental conditions. The backshells in of themselves are not considered electrical apparatus for making connections because they are non-current-carrying metal parts, rather, they facilitate the safe operation of electrical connectors. Noting Legal Note 2(b) to Section XVI of the tariff, the subject backshells are designed and principally used with an apparatus of heading 8536, HTSUS. Therefore, they are properly classified under heading 8538, HTSUS. This comports with the General EN to chapter 85, which provides that non-electrical parts suitable for use solely or principally with a particular kind of electrical machine of this Chapter, remain classified in heading 8538. See EN chapter 85 (B) (ii); see also HQ 967908, dated January 24, 2006, and see HQ 962145, dated November 20, 2000.
HOLDING:
Pursuant to GRI 1, the subject “D-Sub” backshells are classified under heading 8538, HTSUS. They are specifically provided for under subheading 8538.90.8080, HTSUS, which provides for, “Parts suitable for use solely or principally with the apparatus of heading 8535, 8536, or 8537: Other: Other: Other.” The column one, rate of duty is 3.5%.
The Protest Should be DENIED.
In accordance with Sections IV and VI of the Customs Protest/Petition Processing Handbook 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 International Trade, Regulations and Rulings, will make the decision available to CBP Personnel, and to the public on the CBP home page on the World Wide Web at ww.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