CLA-2 CO:R:C:M 950032 AJS
Mr. Alan Clements
President
Ben Clements & Sons, Inc.
50 Ruta Court
South Hackensack, N.J. 07606
RE: Tagging guns; Handtools; Subheading 8479.89.90; Heading
8205; H. Conf. Rep. No. 576; item 678.50, TSUS; Clipper Belt
Lacer Co., Inc. v. U.S.; Brookside Veneers, LTD v. U.S.; Austin
Chem. Co. v. U.S.; Webster's II New Riverside University
Dictionary; Bar Zel Expediters, Inc., a/c Ben Clements & Sons,
Inc., v. U.S.
Dear Mr. Clements:
Your letter of June 20, 1991, regarding the classification
of tagging guns under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), has been forwarded to this
office for reply.
FACTS:
The articles at issue are pistol grip tagging guns. They
have a spring operated trigger mechanism for attaching hang tags
to garments. They are made of a plastic housing with steel
springs and a replaceable steel needle. Strips of plastic barbs
are inserted into the gun and "shot" through the garment material
by the needle's penetration.
ISSUE:
Whether the subject guns are properly classifiable within
subheading 8479.89.90, HTSUSA, which provides for other machines
and mechanical appliances having individual functions not
specified or included elsewhere in this
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chapter; or classifiable within subheading 8205.59.80, HTSUSA,
which provides for handtools not elsewhere specified or included.
LAW AND ANALYSIS:
Classification under the HTSUSA is governed by the General
Rules of Interpretation (GRIs). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings and any relative Section or Chapter notes.
Heading 8205, HTSUSA, provides for handtools which are not
elsewhere specified or included. The Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) state that
this heading includes miscellaneous hand- tools such as spring
operated "pistols" for stapling packages, paperboard, etc. ENs
82.05. While the ENs are not dispositive, they provide a
commentary on the scope of each heading and offer guidance for
interpretation of the HTSUSA. H. Conf. Rep. No. 576, 100th
Cong., 2d Sess., p. 549, reprinted in 1988 U.S. CODE CONG. &
ADMIN. NEWS p. 1582.
The subject tagging guns satisfy the above description. They
are a pistol with a spring operated trigger. While they are not
used for stapling packages or paperboard, they are sufficiently
similar to be within the ambit of ENs. Accord- ingly, we find
the above ENs instructive for determining that the subject guns
satisfy the terms of heading 8205, HTSUSA. More specifically,
they are provided for within subheading 8205.59.80, HTSUSA, as
"other" handtools.
You state that the subject guns were classified under item
678.50, Tariff Schedules of the United States (TSUS), which
provides for other machines not specially provided for.
Decisions under the TSUS are not dispositive in interpreting the
HTSUSA. However, on a case-by-case basis they should be
considered instructive in interpreting the HTSUSA, particular -ly
where the nomenclature previously interpreted in those decisions
remains unchanged and no dissimilar interpretation is required by
the text of the HTSUSA. H. Conf. Rep. No. 576, p. 550. In this
instance, a dissimilar interpretation is indicated by the ENs,
which state that spring operated pistols are classifiable as
handtools. Therefore, we do not find the previous decision under
the TSUS instructive in this case.
You argue that the subject guns are not referred to as
tools in your advertising literature, and should not be
classified as such. The Court of International Trade has
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stated that promotional literature is not determinative for
classification purposes. Clipper Belt Lacer Co., Inc. v. United
States, No. 90-22, slip op. at 22 (CIT May 13, 1990). As stated
previously, classification is determined first by the terms of
the headings. Since the term "tool" is not defined in the
HTSUSA, it is presumed that Congress intended to apply its common
and commercial meaning. Brookside Veneers, LTD v. United States,
847 F. 2d 789 (1988). To ascertain the common and commerciaL
meaning of a term, dictionaries and other lexicographic
authorities may be consulted. Austin Chem. Co. v. United States,
835 F. 2d 1423 (Fed. Cir. 1987). A tool is described as "[a]
hand-held implement, as a hammer, saw, or drill, used in
accomplishing work." Webster's II New Riverside University
Dictionary, p. 1217 (1984). The subject gun satisfies this
description. They are hand-held implements used to accomplish
the work of attaching tags to garments. Accordingly, we do not
agree with your assertion that the subject guns are not tools.
You cite to Bar Zel Expediters, Inc., a/c Ben Clements &
Sons, Inc., v. United States, 3 CIT 84 (1983), in support of
your claimed classification. This case dealt with the
classification of plastic fasteners used in a "gun". It did not
address the classification of the "gun". Therefore, this case
does not support the classification of the subject guns within
heading 8479, HTSUSA.
HOLDING:
The subject tagging guns are classifiable within subheading
8205.59.80, HTSUSA, which provides for handtools dutiable at the
General Column 1 rate of 5.3 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division