H323765

HQ H323765 April 28, 2022 OT:RR:CTF:VS H323765 UBB CATEGORY: Classification Mark S. Stepien Center Director – Automotive/Aerospace 477 Michigan Ave. Detroit, MI 48226 RE: Internal Advice Request; Actual Use; 9817.00.60, HTSUS Dear Center Director: This is in response to the request for internal advice (“IA”) initiated by counsel for OTR Wheel Engineering (“OTR”) on February 9, 2022, concerning an entry for which OTR sought duty free treatment pursuant to subheading 9817.00.60, Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: OTR is a global group of companies that design, engineer, sell, and distribute specialty wheels and tires that are used on a variety of machines and equipment, including lawnmowers. OTR imports, among other types of merchandise, lawn mower tires in a wide variety of sizes and treads. This IA relates to 868 tires entered on January 5, 2022, under subheading 9817.00.60, HTSUS, with statistical reporting number 4011.90.8010, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Separately, subheading 9903.99.03, HTSUS also applies here, indicating the merchandise is subject to section 301 tariffs, unless CBP agrees that the tires are classifiable under subheading 9817.00.60, HTSUS and properly entered as such, pursuant to the relevant regulations at 19 CFR 10.131-10.139. OTR describes the subject merchandise tires as lawn mower tires that are low-speed rated (10 mph) and are designed, engineered, and marketed for use on riding and standing lawn mowers. OTR further notes that heading 8433 includes lawn mowers. OTR argues that Headquarters Ruling Letter (“HQ”) H264768, dated September 7, 2017, is dispositive on the issue that OTR’s lawn mower tires are classifiable under subheading 9817.00.60, HTSUS. The CEE disagrees and maintains that the proper classification of these tires is under subheading 4011.90.8010, HTSUSA. ISSUE: Whether the subject tires are classifiable under subheading 9817.00.60, HTSUS. LAW AND ANALYSIS: As there does not appear to be any dispute regarding the classification of tires under subheading 4011.90.80, HTSUS, the issue in this case is whether the provisions of 9817.00.60, HTSUS, apply. Subheading 9817.00.60, HTSUS, applies to parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436, whether or not such parts are principally used as parts of such articles and whether or not covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c). Additional U.S. Rule of Interpretation 1(c) states: (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; Furthermore, U.S. Note 2, Subchapter XVII, Chapter 98, HTSUS, sets forth articles excluded from subheading 9817.00.60, treatment. Specifically, U.S. Note 2(t) excludes: articles provided for in subheadings 8419.81.50, 8419.81.90, 8427.10, 8427.20, 8427.90 and 8431.20, headings 8432, 8433 and 8434, subheadings 8435.10 and 8435.90, heading 8436, subheadings 8438.80, 8468.10, 8472.90.40, 8479.83, 8479.89, 8485.10, 8485.30 and 8485.80, subheadings 8482.10.10 through 8482.99.65 (other than subheading 8482.91) and subheadings 8483.10.50 and 8487.10. Thus, articles provided for in heading 8433 are excluded from subheading 9817.00.60. Headquarters Rulings Letter (HQ) H264768, dated September 7, 2017, addressed the interpretation of U.S. Note 2(t), also in the context of lawn mower tires. According to HQ H264768, the exclusion in Note 2(t) refers only to “articles” and not “parts” of articles provided for in 8433. OTR notes that lawn mowers are provided for in heading 8433. However, OTR argues that its tires are indisputably parts of lawn mowers and not complete lawn mowers, and therefore not excluded by operation of U.S. Note 2(t). OTR and your office agree that the subject tires are classified under subheading 4011.90.8010, HTSUSA, as new pneumatic tires of rubber, other, other. As such, the tires at issue do not fall within the exclusions enumerated in Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2. In addition, subheading 9817.00.60, HTSUS, requires that the article under consideration must qualify as a part, and that it must be used with an article of headings 8432, 8433, 8434, or 8436. In HQ H264867, CBP held that lawn mower tires constitute parts of a lawn mower. OTR claims its tires are “all but identical to the tires at issue in H264768” and that they are “parts of exactly the same type of lawn mowers at issue in that ruling.” Additionally, OTR notes that its tires are designed for an intended use as lawn mower tires, and highlights the maximum speed rating, the zero-turn capability and treads designed not to damage lawn surfaces as indicators of this specific design. In HQ H264768, we explained that with respect to the first part of the 9817.00.60, a part must be either an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article (see United States v. Willoughby Camera Stores, 21 C.C.P.A. 332, T.D. 46851 (1933)), or it must be dedicated solely for use with another article (see United States v. Pompeo, 43 C.C.P.A. 9, C.A.D. 602 (1955)). As was the case in HQ H264768, the instant tires in this case are integral parts without which the lawn mowers could not function. OTR also argues that since lawn mowers are provided for in heading 8433, HTSUS, the lawn mower tires are parts to be used in an article provided for in heading 8433, HTSUS. Although the tires would not be classified as parts in heading 8433 due to Additional Rule of Interpretation 1(c) and Note 1(a) to Section XVI (which excludes from the section “[t]ransmission, conveyor, or elevator belts or belting, of plastics of chapter 39, or of vulcanized rubber (heading 4010), or other articles of a kind used in machinery or mechanical or electrical appliances or for other technical uses, of vulcanized rubber or other than hard rubber (heading 4016)”), they appear to be dedicated solely or principally for use with the lawn mowers, which are provided for in heading 8433. Further, per U.S. Note 1, Chapter 98, HTSUS, the tires may be considered as parts of the lawnmowers, as they are not subject to the rule of relative specificity in GRI 3(a), and as indicated in subheading 9817.00.60, whether or not they are covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c). As such, the tires may be considered parts that are used with an article in heading 8433. Lastly, Additional U.S. Rule of Interpretation 1(b) sets forth the requirements for using an actual use tariff classification: (b) a tariff classification controlled by the actual use to which the imported goods are put in the United States is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered; Therefore, the merchandise must meet the actual use conditions required in accordance with sections 10.13110.139 of the Customs Regulations (19 CFR §§10.13110.139). 19 C.F.R. § 10.133 provides that three conditions must be met in order to qualify for a free or lower rate of duty pursuant to an actual use provision. These are: Such use is intended at the time of importation. The article is so used. Proof of use is furnished within 3 years after the date the article is entered or withdrawn from warehouse for consumption. Further, § 10.134 provides that: A showing of intent by the importer as to the actual use of imported merchandise shall be made by filing with the entry for consumption or for warehouse a declaration as to the intended use of the merchandise, or by entering the proper subheading of an actual use provision of the Harmonized Tariff Schedule of the United Sta

As there does not appear to be any dispute regarding the classification of tires under subheading 4011.90.80, HTSUS, the issue in this case is whether the provisions of 9817.00.60, HTSUS, apply. Subheading 9817.00.60, HTSUS, applies to parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436, whether or not such parts are principally used as parts of such articles and whether or not covered by a specific provision within the meaning of additional U.S. rule of interpretation 1(c). Additional U.S. Rule of Interpretation 1(c) states:(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;Furthermore, U.S. Note 2, Subchapter XVII, Chapter 98, HTSUS, sets forth articles excluded from subheading 9817.00.60, treatment. Specifically, U.S. Note 2(t) excludes:articles provided for in subheadings 8419.81.50, 8419.81.90, 8427.10, 8427.20, 8427.90 and 8431.20, headings 8432, 8433 and 8434, subheadings 8435.10 and 8435.90, heading 8436, subheadings 8438.80, 8468.10, 8472.90.40, 8479.83, 8479.89, 8485.10, 8485.30 and 8485.80, subheadings 8482.10.10 through 8482.99.65 (other than subheading 8482.91) and subheadings 8483.10.50 and 8487.10.Thus, articles provided for in heading 8433 are excluded from subheading 9817.00.60. Headquarters Rulings Letter (HQ) H264768, dated September 7, 2017, addressed the interpretation of U.S. Note 2(t), also in the context of lawn mower tires. According to HQ H264768, the exclusion in Note 2(t) refers only to “articles” and not “parts” of articles provided for in 8433. OTR notes that lawn mowers are provided for in heading 8433. However, OTR argues that its tires are indisputably parts of lawn mowers and not complete lawn mowers, and therefore not excluded by operation of U.S. Note 2(t). OTR and your office agree that the subject tires are classified