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HQ 960950




January 16, 1998

CLA-2 RR:CR:GC 960950 RTR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8708.99.80

Mr. Donnie B. Turbeville,
Customs Coordinator
BMW
1400 Highway 101 South
Greer, South Carolina 29651

RE: NY A89017 revoked; leather cut-to-fit pieces for automotive gear shift lever knob; parts, accessories, heading 4205.00, HTSUS.

Dear Mr. Turbeville:

This is in reference to your letter of July 16, 1997, requesting reconsideration of NY A89017, concerning the classification of cut-to-shape leather pieces that are used for gear shift lever knobs.

Pursuant to section 625(c)(1)), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub L. . 103 - 182, 107 Stat. 2057, 2186 (1993), notice of proposed revocation of NY A89017 was published on December 10, 1997 in the Customs Bulletin, Volume 31, Number 50.

In NY A89017, issued to Nippon Express, U.S.A., Inc., on November 12, 1996 on behalf of DAA-Draexlmaier Automotive of America, the Area Director of Customs, New York determined that two pieces of cut-to-shape leather, which, when sewn together, fit a gear shift lever, were classifiable under subheading 8708.99.67, Harmonized Tariff Schedule of the United States (HTSUS), which provides for parts and accessories of the motor vehicles of headings 8701 to 8705; other parts and accessories; other; other; other parts for power trains. You contend that such leather pieces are also used for door panels, air bag coverings, etc., and are classifiable in heading 4205, HTSUS, which provides for other articles of leather, or of composition leather.

FACTS:

The articles subject to NY A89017 consist of two pieces of soft, black leather; one is crown-shaped, measuring 4 inches L x 5-3/10 inches W; the other is shaped like an exclamation point and measures 4-3/8 inches L x 1-3/8 inches W. Both are cut-to-shape to fit the knob of the gear shift lever of BMW automobiles. They are sewn around the gear shift lever after importation.

There are at least three types of gear shift lever knobs available on BMW automobiles: leather, polished teak, and rubber. Although there is an aesthetic difference between them and individual BMW customers might choose one above another on this basis, none enhances the performance of, nor is an essential constituent or component of the power train. Thus, when sewn around the gear shift lever, the effect of the leather pieces is aesthetic, not functional.

ISSUE:

Whether the leather pieces are classifiable under heading 4205, HTSUS, as "other articles of leather or of leather composition", or as "other parts of power trains" under heading 8708, HTSUS, or as "other parts and accessories" under heading 8708, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The tariff provisions under consideration are as follows:

4205.00 Other articles of leather or of composition leather:

Other

4205.00.80 Other

8708 Parts and accessories of the motor vehicles of headings 8701 to 8705

Other parts and accessories

8708.99 Other

Other

8708.99.67 Other parts for power trains

8708.99.80 Other

You suggest that the merchandise is classifiable in subheading 4205.00.80, HTSUS, which provides for articles of leather or of composition leather: other: other. This is a basket provision covering leather goods not enumerated elsewhere in the HTSUS. Customs believes that the merchandise is properly classifiable in subheading 8708.99.80, HTSUS, which specifically covers parts and accessories for motor vehicles. This, too, is a basket provision, but it is preferable to subheading 4205.00.80 for the reasons stated below.

Although the merchandise is not specifically described in chapters 4205 or 8708, HTSUS, or in the ENs, EN 87.08 (at pages 1552, 1553) provides a two-part test for "parts" and "accessories," which brings the leather pieces squarely into the purview of heading 8708, HTSUS. According to EN 87.08, this heading covers parts and accessories of motor vehicles of headings 87.01 to 87.05, provided the parts and accessories fulfill both of the following conditions: (i) they must be identifiable for use solely or principally with the above-mentioned vehicles; and (ii) they must not be excluded by the provisions to the Notes to Section XVII.... Further, parts and accessories of this heading include: ... (M) Control equipment, for example, steering wheels, steering columns, and steering boxes, steering axles; gear change... levers (emphasis added)...

Webster's II New Riverside University Dictionary defines a "part" as a "component capable of being separated from the system"; a "component" is defined as a "constituent, as an element of a system"; a "constituent" is defined as that which is "necessary in the formation of the whole" (emphasis added). Under these definitions, in order to be a "part", an item must be necessary to the formation of the power train. The leather pieces are not necessary because both rubber and teak covered gear shift lever knobs can be substituted for the leather pieces with no diminution in performance. Thus, they are not "parts".

The term "accessory" is not defined in either the HTSUS or the ENs. An accessory is generally an article which is not necessary to enable the goods, with which it is used, to fulfill their intended function. Accessories are of secondary importance, not essential in and of themselves. 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 ranges of its uses, or improve its operation). An accessory must be identifiable as being intended solely or principally for use with a specific article.

Customs believes that the power train of a motor vehicle extends from the engine through the transmission and differential through the power axles. The gear shift lever knob, which includes the sewn-on leather pieces, is a component of the power train. However, since both teak and rubber lever covers can be substituted without diminution in power train performance, the merchandise is not essential to the operation of the automobile. While they are of secondary importance, the leather pieces contribute to the effectiveness of the principal article (the power train) because they protect the driver's hand from shock and vibration. Owing to the fact that they are cut-to-fit, the leather pieces can only be used for the gear shift levers of automobiles. Likewise, cut-to-fit leather pieces for door panels, air bag coverings, etc., can only be used for automobiles.

The leather pieces satisfy the first requirement of the two-part test of EN 87.08 because, as stated above, they are suitable for use solely or principally with BMW automobiles. They satisfy the second requirement because there is no exclusion which covers the subject merchandise in the Notes to Sections XIII or XVII, HTSUS, or in the Notes to chapters 42 or 87, HTSUS. Thus, for tariff purposes, the leather pieces are accessories under heading 8708, HTSUS.

Under Additional U.S. Rule of Interpretation 1(c), HTSUS, 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. Thus, only a specific provision for a part will prevail over a "parts and accessories" provision. It is an accepted rule of classification that a basket provision is not specific for tariff purposes. Subheading 4205.00.80, HTSUS, is not a specific provision because it is a basket provision. For this reason, it does not prevail over subheading 8708.99.80, HTSUS.

HOLDING:

Under the authority of GRI 1 and Additional U.S. Rule of Interpretation 1(c), HTSUS, the cut-to-fit leather pieces are provided for in heading 8708, HTSUS. They are classifiable in subheading 8708.99.80, HTSUS, as other parts and accessories of the motor vehicles of headings 8701 to 8705. The applicable duty rate is 2.7% ad valorem.

EFFECT ON OTHER RULINGS:

NY A89017, dated November 12, 1996, is hereby revoked. In accordance with 19 U.S.C. 1625(C)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(C)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division

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