H315471

 HQ H315471 June 28, 2023 OT:RR:CTF:CPMMA H315471 KSG CATEGORY: Classification TARIFF NO.: 8708.29.50, 7007.11.10 CEE Director Industrial and Manufacturing Materials Center for Excellence JFK Airport, Building #77 Jamaica, NY 11430 Attn: Holly K McKinney, Import Specialist RE: Tariff classification of automotive glass; Protest #180120100297 Dear Director: This letter is in reference to your request for Internal Advice (IA) regarding the tariff classification of certain automotive glass under the Harmonized Tariff Schedule of the United States (HTSUS). At the request of counsel, a video conference was held on this matter on April 4, 2022. An additional submission by counsel, dated May 13, 2022, was considered in making this determination. FACTS: This IA involves certain automotive windshield glass, rear window automotive glass and side window automotive glass which were the subject of Lead Protest #180120100297 (this and related protests are suspended at the request of counsel for the importer pending the determination of the instant IA). All of these articles were entered under subheading 8708.29.50, HTSUS, which provides as follows: “Parts and accessories of the motor vehicles of headings 8701 to 8705: Other: Other.” The nine (9) models at issue were described in a letter submitted by counsel on behalf of Fuyao North America, dated July 31, 2020, (Attachments A, B, and C), which included model numbers, the particular automobile vehicle it fit on, a brief description and photographs of the articles. Although the nine models were described as “representative,” we are only able to rule on these nine models that were specifically described in the Protest as required by 19 CFR 174.13(a)(5). The nine models were described as follows: DW1817SGTY, Cadillac 5RX 4D Utility, 2012-2020. Automotive windshield with molding. Ceramic frit shown in photographs (Model A). FW2824SGTYJ, Mercedes Benz GL 450 4D Utility, 2008-2012. Automotive windshield with molding. Ceramic frit shown in photographs (Model B). FW317ISGBN, Kia Sorento 4D Utility, 2011-2015. Automotive windshield with heated. Ceramic frit shown in photographs (Model C). FD25400YPN, Land Rover Range Rover Evoque 4D Utility, 2012-2019. Automotive tempered door glass (Model D). FD26928SGTN, Toyota Prius 4D Hatchback, 2016-2020. Automotive tempered door glass (Model E). DB9520SGTN, Ford Econoline 3D Van 1998-2016. Automotive tempered backlite glass. Photograph shows a ceramic frit (Model F). DB12356YPN, Ford Transit Van 2015- 2019. Automotive tempered backlite glass with heated. Ceramic frit shown in photographs (Model G). DB12357YPN, Ford Transit Van 2015-2019. Automotive tempered backlite glass with heated (Model H). FB26160YPY, Nissan Rogue 4D Utility 2014-2020. Automotive tempered backlite glass with heated. Ceramic frit shown in photographs (Model I). Counsel stated (and the photographs show) that the front windshields have a ceramic frit, which is described as baked-in black ceramic paint around the edges of the safety glass (models A, B, C). The photographs show that the backlite glass (models F, G, H, and I) also have a ceramic frit. The frit is painted black enamel that is baked around the border of automotive glass. The purpose of the frit is to provide an etched surface that allows the adhesive to bond to the automotive glass. It is the contact point between the glass and the frame and serves to strengthen the adhesive bond. It is also a shield against UV radiation which protects the adhesive bond, which would otherwise be weakened by continual exposure to direct sunlight. The frit can also reduce glare for the driver. CBP issued a binding ruling to Fuyao, New York Ruling Letter (NY) N301993, dated February 6, 2019, which held that a front automotive windshield with an enamel paint frame, electrical connectors, and fittings to connect a side mirror and a rear backlite window with an enamel paint frame, silver heat lines, and electrical connectors were classified in subheading 8708.29.50, HTSUS. LAW AND ANALYSIS 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 HTSUS headings under consideration are the following: 7007 Safety glass, consisting of toughened (tempered) or laminated glass 8708 Parts and accessories of the motor vehicles of heading 8701 to heading 8705 We note that there were changes made to the HTSUS in 2022 that would impact similar articles from 2022 to present. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The Explanatory Note (EN) for heading 7007 states, in pertinent part, that “Safety glass incorporated in other articles and thus in the form of parts of machines, appliances or vehicles is classified with those machines, appliances or vehicles.” 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. In Bauerhin, the Court of Federal Appeals (CAFC) considered whether a canopy designed for a car seat was considered a part of the car seat. The court stated: The facts in Willoughby Camera are considerably different from those presented here in which the article at issue, the canopy, serves no function or purpose that is independent of the child safety seat. It is undisputedly designed, marketed, and sold to be attached to the child safety seats. The facts of this case bear a closer resemblance to United States v. Pompeo, 43 C.C.P.A. 9, 1955 WL 6859 (1955). In Pompeo, the issue was whether an imported supercharger was properly considered a part of an automobile. There, the court looked to the nature and function of the imported item, the supercharger, to determine whether the item was a part of an automobile. The government in that case argued that because the automobiles were able to function with or without the supercharger, the imported supercharger was not properly considered a part of the automobile. The court disagreed, noting that the classification of the supercharger should turn on the nature of the supercharger and not on the design choices of the automobile manufacturer. Because the 

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. In Bauerhin, the Court of Federal Appeals (CAFC) considered whether a canopy designed for a car seat was considered a part of the car seat. The court stated:The facts in Willoughby Camera are considerably different from those presented here in which the article at issue, the canopy, serves no function or purpose that is independent of the child safety seat. It is undisputedly designed, marketed, and sold to be attached to the child safety seats. The facts of this case bear a closer resemblance to United States v. Pompeo, 43 C.C.P.A. 9, 1955 WL 6859 (1955). In Pompeo, the issue was whether an imported supercharger was properly considered a part of an automobile. There, the court looked to the nature and function of the imported item, the supercharger, to determine whether the item was a part of an automobile. The government in that case argued that because the automobiles were able to function with or without the supercharger, the imported supercharger was not properly considered a part of the automobile. The court disagreed, noting that the classification of the supercharger should turn on the nature of the supercharger and not on the design choices of the automobile manufacturer. Because the imported supercharger was “dedicated irrevocably for use upon automobiles,” the court held that the supercharger was properly classified as a part of automobiles. Pompeo, 43 C.C.P.A. at 13. The CAFC stated that Willoughby Camera and Pompeo must be read together but that Pompeo and not Willoughby Camera was controlling when an imported item is dedicated solely for use with an article. When an item is dedicated solely for use with an article, Pompeo is controlling and the item is classified as a part.Headquarters Ruling Letter (HQ) H112616, dated November 1, 2010, considered whether tempered framed automo