CLA-2 CO:R:C:M 089163 AJS
District Director
U.S. Customs Service
909 First Avenue
Room 2039
Seattle, WA 98174
RE: Protest Number 3001-90-101439; auto body repair tool kits;
Subheading 8467.89.50; Subheading 8413.50.00; Heading 8467; EN
84.67; H. Conf. Rep. No. 576; GRI 3; GRI 3(b) EN (X)(a); Heading
8413; Heading 8412; Heading 4009; Heading 7326; sets; GRI 3(b) EN
(X)(b); GRI 3(b) EN (X)(c); GRI 3(b) EN (VIII); essential
character.
Dear District Director:
Protest for further review number 3001-90-101439 dated
December 26, 1990, was filed against the classification of 10 ton
and 4 ton auto body repair tool kits within subheading
8413.50.00, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).
FACTS:
The merchandise under protest is the 10 ton and 4 ton auto
body repair tool kits. These kits consists of various hydraulic
equipment and attachments which are used for straightening out
damaged automobile frames and body parts. They contain a
manually operated hydraulic piston pump, connected to a hydraulic
cylinder (ram) by a six foot long pressure hose; various size
extension tubes for mounting on the ram; and a number of work
attachments (spreader, flat base, ram toe, combination head,
rubber head, etc.). These items are imported together in a metal
tool chest. The main difference between the two kits is the size
and strength of the pump, ram and extension tubes.
ISSUE:
Whether the subject kits are properly classifiable within
subheading 8467.89.50, HTSUSA, which provides for other tools for
working in the hand with a self-contained non-electric motor; or
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classifiable within subheading 8413.20.00, HTSUSA, which provides
for "[h]and pumps, other than those of subheading 8413.11 or
8413.19."; or classifiable within subheading 8413.50.00, HTSUSA,
which provides for "[o]ther reciprocating positive displacement
pumps."
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the
terms of the headings of the tariff and any relative section or
chapter notes, and unless otherwise required, according to the
remaining GRI's taken in order.
Heading 8467, HTSUSA, provides for "[t]ools for working in
the hand, pneumatic or with self-contained nonelectric motor, and
parts thereof." The protestant claims that the subject kits
satisfy the terms of this heading. The Harmonized Commodity
Description and Coding System Explanatory Notes (ENs) state that
heading 84.67 covers tools which incorporate a non-electric
motor. ENs 84.67, p. 1289 (1991). The subject kits consist of a
hydraulic ram onto which various extension tubes and work tools
may be attached. This ram is connected to a manually operated
hydraulic piston pump by a pressure hose. In addition, the kits
contain a hydraulic spreader which is interchangeable with the
ram. This type of merchandise is not merely a tool for working
in the hand which operates by means of a non-electric motor.
Instead, it is a kit composed of a set of tools which are
connected to and operated by means of a hydraulic motor, pump and
spreader. Accordingly, the subject kits do not satisfy the terms
of this heading and cannot be classified therein by the
application of GRI 1.
This conclusion is supported by the ENs to heading 84.67.
They state that this heading excludes sets consisting of a tool
holder with one or more tools, and a spark-ignition internal
combustion piston engine with a flexible shaft ("tool holder
sets"). The subject kits are similar to this type of
merchandise. They are a set consisting of a tool holding device,
with various extension tubes and tools which can be attached to
the ram. While the kit does not possess an internal combustion
engine, it possesses a ram which is a hydraulic linear acting
cylinder (i.e., non-electric linear motor). 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. Accordingly, we find
the above ENs instructive for determining that the subject kits
do not satisfy the terms of heading 8467, HTSUSA.
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The ENs to heading 84.67 state that the above tool holder
sets are classified in heading 84.66, the spark-ignition internal
combustion engine in heading 84.07, and the tools in their own
appropriate headings. ENs 84.67. This language addresses the
classification of a very specific set of articles. The subject
kits do not satisfy this specific description. The kits do not
have the type of spark-ignition internal combustion engine
described in the ENs. Furthermore, while the kits possess a tool
holding device, it is not the type of tool holder described in
heading 84.66. Therefore, the kits are not properly classifiable
in the manner described in the ENs to heading 84.67.
GRI 3 provides for the classification of "goods put up in
sets for retail sale" ("sets"). These consist of at least two
different articles which are, prima facie, classifiable in
different headings. GRI 3(b), ENs (X)(a). The subject kits
satisfy this description. They each consist of a hydraulic pump
classifiable within heading 8413, HTSUSA, a hydraulic cylinder
classifiable within heading 8412, HTSUSA, hydraulic hose class-
ifiable within heading 4009, HTSUSA, and a metal tool box
classifiable within heading 7326, HTSUSA.
Sets must also consist of articles put up together to meet a
particular need or carry out a specific activity. GRI 3(b), ENs
(X)(b). The subject kits satisfy this requirement. They consist
of articles put up together to carry out the specific activity of
straightening out damaged automobile frames and body parts.
Sets must lastly be put up in a manner suitable for sale
directly to users without repacking (e.g., in boxes or cases or
on boards). GRI 3(b), ENs (X)(c). The subject kits satisfy this
requirement. The submitted literature indicates that the kits
are put up in sets and sold in that manner directly to the user.
Accordingly, the subject kits satisfy all of the requirements of
a set and are classifiable as such.
GRI 3(a) states that the heading which provides the most
specific description of a set shall be preferred to headings
providing a more general description. However, when two or more
headings each refer to part only of the items in a set, those
headings are to be regarded as equally specific in relation to
those goods, even if one of them gives a more complete or precise
description of the goods. The subject kits satisfy this
description. As stated previously, at least four headings refer
to part of the items in the kits. Accordingly, the kits are not
classifiable by the application of GRI 3(a).
Sets which cannot be classified by reference to GRI 3(a),
shall be classified as if they consisted of the component which
gives them their essential character. GRI 3(b). The factor
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which determines essential character will vary as between
different kinds of goods. GRI 3(b), ENs (VIII). It may, for
example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the goods. GRI
3(b), ENs (VIII). In this case, the hydraulic pump is the
component which gives the sets their essential character. It is
the only component which must be used at all times. The
extension tubes and work attachments are interchangeable and used
on an as needed basis, and the ram is interchangeable with the
hydraulic spreader. In addition, the pump is also the most
expensive item in the kits. Accordingly, the subject kits are
classifiable as if they consisted solely of the hydraulic pumps.
Heading 8413, HTSUSA, provides for pumps for liquids. The
subject pump is a manually operated hydraulic piston pump. This
type of pump satisfies the terms of this heading. More specifi-
cally, the pump is provided for within subheading 8413.20.00,
HTSUSA, as a hand pump. Therefore, the subject kits are
classifiable within this subheading based upon the application of
GRI 3(b).
The subject kits were liquidated within subheading
8413.50.00, HTSUSA, which provides for "other" reciprocating
positive displacement pumps. This classification was also based
on the application of a GRI 3(b) set analysis. However, the
subject kits satisfy the terms of subheading 8413.20.00, HTSUSA,
which specifically provides for hand pumps. Therefore, resort to
the "other" pump provision for classification within subheading
8413.50.00, HTSUSA, is not required in this instance.
HOLDING:
The 10 ton and 4 ton auto body repair tool kits are properly
classifiable within subheading 8413.20.00, HTSUSA, which provides
for hand pumps, currently dutiable at the General Column 1 rate
of 3 percent ad valorem. Since the rate of duty under the
classification indicated above is the same as the liquidated
rate, you should deny the protest in full. A copy of this
decision should be attached to the Customs Form 19 and mailed to
the protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division