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HQ 964214




September 13, 2001

CLA-2 CO:RR:CR:GC 964214 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 4009.50.00

Mr. Richard H. Abbey
Ms. Sarah M. Nappi
Miller & Chevalier
655 Fifteenth Street, N.W.
Washington, D.C. 20005-5701

RE: Windshield wiper tube assemblies.

Dear Mr. Abbey and Ms. Nappi:

This is in reference to your letter, dated April 20, 2000, to the Customs National Commodity Specialist Division, New York, requesting reconsideration of New York Ruling Letter (NY) F80339, dated December 28, 1999, and issued to you on behalf of Toyota Tsusho America, Inc. (“TTAI”), which concerned the classification of windshield wiper tube assemblies under the Harmonized Tariff Schedule of the United States (HTSUS). NY F80339 classified the windshield wiper tube assemblies under subheading 4009.50.0040, HTSUS, which provides for tubes, pipes and hoses of vulcanized rubber other than hard rubber . . . with fittings, other, not reinforced. We have reviewed NY F80339 and believe that the classification set forth is correct. We regret the delay in responding.

FACTS:

The items at issue are windshield wiper tube assemblies, model #s AW060880-8982, AW060880-8992, AW060880-9002, AW060880-9371 and AW0060680-0090. These windshield wiper assemblies consist of an EPDM [ethylene-propylene-non-conjugated diene rubber, see subheading 4002.70, HTSUS] rubber tube with attached, plastic fittings. Model # AW060880-8982 consists of an approximately four-foot length of vulcanized rubber tubing with a three way plastic joint affixed to one end. Model # AW060880-8992 consists of an approximately ten-foot length of vulcanized rubber tubing with a plastic clamp attached by means of plastic tape at one point along its length and a plastic elbow joint affixed to one end.

Model # AW060880-9002 consists of an approximately two-foot length of vulcanized rubber tubing connected by a plastic joint at one end to a shorter (approximately four-inch) rubber hose which is bent at a right angle. At the opposite end of the tubing is affixed a plastic valve sub-assembly containing a ball bearing. Model # AW060880-9371 consists of an approximately four-foot length of vulcanized rubber tubing with a plastic joint affixed to one end. Model # AW060880-0090 consists of two lengths of vulcanized rubber tubing, approximately four feet long, taped together with plastic tape at to places, and one of the tubes has a plastic joint affixed at one end. All five models of the tubes are designed to be installed in automobiles to transport windshield washer fluid from the reservoir to the sprayer jets in order to clean the windshield.

You aver that the windshield wiper tube assemblies are classifiable under subheading 8424.90.90, HTSUS, which provides for mechanical appliances for projecting, dispersing or spraying liquids or powders. . . parts thereof . . . other. In support of this contention, you allege that the articles are so classifiable because of their purported similarity to articles classified in Headquarters Ruling Letter (HQ) 962986, dated November 22, 1999.

ISSUE:

Whether the windshield wiper tube assemblies are classifiable under subheading 4009.50.00, HTSUS, which provides for tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with fittings, other; or under subheading 8424.90.90, HTSUS, which provides for mechanical appliances for projecting, dispersing or spraying liquids or powders . . . parts thereof . . . other?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes[.]”

The HTSUS provisions under consideration are as follows:

4009 Tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with or without their fittings (for example, joints, elbows, flanges): 4009.50.00 With fittings:
Other:
4009.50.0040 Not reinforced.
8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:
8424.90 Parts:
8424.90.90 Other.

Note 1(a) to section XVI, HTSUS, states that chapters 84 and 85 do not cover articles “of vulcanised rubber (heading 4010); or other articles of a kind used in machinery or mechanical or electrical appliances or for other technical uses, of vulcanised rubber other than hard rubber (heading 4016).” In HQ 950892, dated May 13, 1992, Customs held that the parenthetical [to heading 4016] was for reference purposes only and therefore noninclusive, such that articles of heading 4009 are covered by the exclusion as well as those parenthetically cited. Thus, if the windshield wiper tube assemblies are classifiable under heading 4009, HTSUS, they cannot be classified under heading 8424, HTSUS.

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. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The ENs to heading 4009, HTSUS, provide, in pertinent part, that the heading covers tubes, pipes and hoses consisting wholly of vulcanised rubber (other than hard rubber) and that the tubes, pipes and hoses remain classifiable under heading 4009 even if presented with fittings (for example, joints, elbows, flanges), provided that they retain the essential character of piping or tubing.

There is no question that the windshield wiper tube assemblies convey wiper fluid from the reservoir to the windshield. We find that the rubber tubes perform this function, thereby “retaining the essential character of piping or tubing” (see the ENs to heading 4009, supra). The fittings perform a connective function that is ancillary to that of the rubber tubes. Thus, the articles are prima facie classifiable at GRI 1 in headings 4009, HTSUS.

You rely on HQ 962986, dated November 22, 1999, to support your contention that the windshield wiper tube assemblies are classifiable under heading 8424, HTSUS. In that ruling, automotive washer nozzle assemblies were classified under subheading 8424.90.90, HTSUS. In so holding, we determined that the articles were “integral, constituent and component parts necessary to the completion of the mechanical spraying appliances of heading 8424” and were classifiable as such pursuant to Note 2(b) to Section XVI. Further, the articles were designed and manufactured with nozzle assemblies (which functioned to “direct washer liquid onto the windows of the vehicle”) and those nozzle assemblies were determined to provide the main function of those articles. The goods subject of NY F80339 lack nozzle assemblies. Thus, we are not persuaded by your argument and find no discrepancy between HQ 962986 and NY F80339.

This determination comports with several prior Customs decisions. In HQ 950282, dated December 6, 1991, we held that:

Heading 4009, HTSUS, describes tubes, pipes and hoses of vulcanized rubber other than hard rubber, with or without their fittings. To be classified thereunder are goods fitting such a description. Again, if the tubes are with fittings of the same material as or different from the tube, we are of the opinion that a given tube shall be classified in the subheading that most specifically describes it, and a tube with fittings shall be similarly classified, regardless of the composition of the fitting/s, since it is the tubular component which gives the composite good its essential character, GRI 3(b), HTSUS.

See also HQ 083970, dated July 14, 1989 and HQ 088536, dated September 4, 1991, both of which determined that wiper blades were excluded from classification in heading 8512, HTSUS, by virtue of the exclusion for articles of rubber and that the rubber portion of the wiper blades performs the wiping function (and thus imparts the essential character) of the articles, respectively, and were therefore classifiable under heading 4009, HTSUS.

HOLDING:

The windshield wiper tube assemblies, models #s AW060880-8982, AW060880-8992, AW060880-9002, AW060880-9371 and AW0060680-0090, are classifiable under subheading 4009.50.00, HTSUS, which provides for tubes, pipes and hoses, of vulcanized rubber other than hard rubber, with fittings, other.

EFFECT ON OTHER RULINGS:

NY F80339 is affirmed.

Sincerely,

John Durant, Director

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