CLA-2 RR:CR:GC 966216 DSS
Assistant Port Director, Trade Operations
Chicago Seaport
U.S. Customs and Border Protection
610 S. Canal Street
Chicago, IL 60607
RE: Request for Further Review of Protest No. 3901-02-101516; file brush, ski edge sharpeners and wax scraper tool; Chapter 95; Legal Note 3; Accessories
Dear Port Director:
This is in response to the request for further review of Protest No. 3901-02-101516, filed by Kuehne and Nagel, Inc. on behalf of Ruffalo Enterprises, Inc. against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain ski tuning and cleaning articles. A product catalog submitted with the protest depicts the articles at issue. The entry was liquidated on June 7, 2002, and this protest was filed on August 21, 2002.
FACTS:
The file reflects the following; the articles at issue are: (1) a brass file cleaning brush (catalog no. MT504), (2) a ski edge sharpener “pocket combi,” (3) a ski edge sharpener “pocket combi” “Dakine” (MT717), and (4) a Tru-sharp Scraper re-conditioner (SKS3376). The protestant further notes that the file brush is used to clean various ski sharpening, edging, or beveling tools, and that even though it is imported separately, it is to be included in its “Ski & Snowboard Tuning Kits” and is not intended to be sold separately.
The protestant entered the articles on June 18, 2001, as follows: the file brush was classified under subheading 9603.90.8050, HTSUS, as other manufactured articles, other brushes; the other articles were classified under subheading 8205.59.5560, HTSUS, as other hand tools,
other. However, the protestant argues that these classifications were in error and that the articles should be classified under subheading 9506.11.60, HTSUS, as accessories of snow skis. The entry was liquidated on June 7, 2002, as follows: the file brush was liquidated under subheading 9603.90.8050, HTSUS, as other manufactured articles, other brushes; the other articles were liquidated under subheading 8205.59.5560, HTSUS, as other hand tools, other.
ISSUE:
Whether the instant articles are classified as parts and accessories of snow skis under subheading 9506.11.60, HTSUS.
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 19 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
Note 3 to Chapter 95, HTSUS, provides that “parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” Thus, subject to note 1 to chapter 95, HTSUS, (which is not at issue in this instance), if the articles in question are accessories that are solely or principally used with an article of chapter 95 (specifically snow skiis of heading 9506, HTSUS), they must be classified under that heading, regardless of whether they are covered by another provision elsewhere in the tariff schedule. See HQ 952716, dated March 3, 1993 (classifying swimming pool thermometers as swimming pool accessories under heading 9506, HTSUS, rather than thermometers under heading 9025, HTSUS); Chapter 90, n. 1(k), HTSUS. See also Section XVI, note 2; Chapter 90, note 2 (for contrasting treatment of parts and/or accessories).
The HTSUS provisions under consideration are as follows:
8205 Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal- operated grinding wheels with frameworks; base metal parts thereof:
Other handtools (including glass cutters) and parts thereof:
Other:
Other:
Other:
Other:
Edged handtools:
Other (including parts)
* * * *
9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof:
Snow-skis and other snow-ski equipment; parts and accessories thereof:
Skis and parts and accessories thereof, except ski poles:
Parts and accessories
* * * *
Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees):
9603.90 Other:
Other:
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. The Bureau of Customs and Border Protection (Customs) believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
You argue that the articles under protest are not accessories of skis because they are not additional or extra items that can be attached or affixed to skis to either add to or maintain their beauty (i.e., as a protective covering), comfort or efficiency. You argue that the articles are classified under subheading 8205.59.55, HTSUS, as other hand tools of iron or steel, except for the file brush, which you argue is specifically provided for under 9603.90.80, HTSUS, as other brushes.
The protestant argues that the articles were originally misclassified when entered under the subheadings mentioned in the preceding paragraph, and that they are properly classified as accessories to snow skis under subheading 9506.11.60, HTSUS. Protestant also argues that these articles belong to a class or kind of goods that are suitable for use solely or principally with snow skis at or immediately prior to the date of importation.
As to the claim as “accessories,” Additional U.S. Rule of Interpretation 1(c) states that:
In the absence of special language or context that otherwise requires, [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 of accessory.
The liquidated provisions in headings 8205 and 9603 are specific provisions under Rule 1(c). However, this Rule does not apply if chapter 95, note 3, HTSUS, is found to constitute “special language which otherwise requires.” That is if either the brass file cleaning brush, the ski edge sharpeners, or the Tru-sharp Scraper, or any of them, qualify as “accessories” for tariff purposes, they are to be classified according to chapter 95, Note 3. See HQ 085895, dated November 27, 1989 and HQ 958298, dated January 17, 1996, and cases cited.
Heading 9506, HTSUS, provides for, among other things, snow skis and their parts and accessories. “Accessory” is not defined in the HTSUS. Thus, we employ the common and commercial meanings of the term, as the courts did in the Rollerblade decisions, wherein the courts derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F. Supp. 2d 1247 (Ct. Int’l Trade 2000), aff’d by Rollerblade, Inc. v. United States, 282 F.3d 1349 (Fed. Cir. 2002) (holding inline roller skating protective gear is not an accessory because the protective gear does not directly act on or contact the roller skates in any way). For example, the Oxford English Dictionary 74 (2d ed. 1989) defines “accessory” as: "Of things: Coming as an accession; contributing in an additional and hence subordinate degree; additional, extra, adventitious." See also HQ 085038, dated September 29, 1989, which cited with approval the definition of “accessory” as found in Webster’s Third New International Dictionary, Unabridged (1986), as an “object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else.”
The ski sharpeners act on the principle item (snow skis) by cleaning the skis after use, thereby contributing to the care and maintenance of the skis by improving or maintaining their edging and turning characteristics. Although the information in the file is somewhat limited, it appears that the ski sharpeners are designed solely or principally for use on snow skis. Consequently, under chapter 95, note 3, HTSUS, the ski edge sharpeners are classifiable with the snow skis of heading 9506, HTSUS, as accessories under subheading 9506.11.60, HTSUS. Classification of the sharpeners under heading 8205, HTSUS, is therefore precluded. See HQ 952716, dated March 3, 1993, and HQ 953141, dated February 8, 1993.
The SKS 3376 Tru-sharp Scraper re-conditioner removes wax, dirt, and other contaminants from ski tools. Likewise, the protestant states that the brass file cleaning brush is used to clean various ski sharpening, edging, or beveling tools. Noting the above discussion, because they act on ski tools, and not on the skis themselves, neither of these articles is considered an “accessory” for tariff purposes and neither can be classified in accordance with chapter 95, note 3, HTSUS. In these circumstances, as there is no provision for “parts” or for “parts and accessories” to consider, Additional U.S. Rule of Interpretation 1(c), HTSUS, is no longer in issue. We are left to consider whether under GRI 1, either the Tru-sharp Scraper re-conditioner or the brass file cleaning brush, or both of these articles, are described in a 4-digit heading of the HTSUS.
Heading 8205, HTSUS, provides for handtools not elsewhere specified or included. The text of heading 8205 limits that heading to tools not specified or included elsewhere in the HTSUS. EN 82.05 states as follows:
This heading covers all hand tools not included in other headings of this Chapter or elsewhere in the Nomenclature . . ., together with certain other tools or appliances specifically mentioned in the title.
Although the term "tool" is not defined in the HTSUS, it is presumed that Congress intended to apply its common and commercial meanings, which are presumed to be the same. 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 scraper re-conditioner device satisfies this description. It is a hand-held implement used to accomplish the work of reconditioning (i.e., sharpening) ski scraper tools. Imported separately, the scraper re-conditioner, comprised of base metal and designed to be used by hand, is prima facie classifiable at GRI 1 under heading 8205, HTSUS, which provides for other handtools not elsewhere specified or included, specifically at subheading 8205.59.55, HTSUS.
The General Notes to Chapter 96 state that the chapter includes, among other things, brushes that are provided for more specifically elsewhere in the HTSUS. EN (B) for other brooms and brushes of heading 9603, HTSUS, states, in pertinent part:
This group comprises a variety of articles, differing considerably both in materials and shape, used for toilet purposes, for household cleaning, for applying paints, adhesive or liquid products, and for certain industrial operations (cleaning, polishing, etc.)
In general, the brooms and brushes of this group consist either of small tufts or knots of flexible or springy fibres or filaments mounted in a broom or brush stock or back, or, as in the case of paint brushes, of a bunch of hairs or fibres strongly secured to the end of a short stock or handle with or without the aid of a metal ferrule or other retaining device. . . .
The instant file brush satisfies this description. It is a hand-held brush used to clean ski scrapers and other tools. In its condition as imported, (i.e., imported separately from other articles), the file brush is prima facie classifiable at GRI 1 under heading 9603, HTSUS, which provides for other brushes not elsewhere specified or included, specifically at subheading 9603.90.80, HTSUS.
HOLDING:
Under the authority of GRI 1 and chapter 95, note 3, HTSUS, the ski edge sharpener pocket combi and the ski edge sharpener pocket combi “Dakine” (MT717) are provided for in heading 9506, HTSUS. They are classifiable in subheading 9506.11.60, HTSUS. Under the authority of GRI 1, the Tru-sharp Scraper re-conditioner is provided for in heading 8205, HTSUS. It is classifiable in subheading 8205.59.55, HTSUS. Under the authority of GRI 1, the brass file cleaning brush (catalog no. MT504) is provided for in heading 9603. It is classifiable in subheading 9603.90.80, HTSUS.
The protest is GRANTED with regard to the ski edge sharpener “pocket combi” and the ski edge sharpener “pocket combi” “Dakine” (MT717).
The protest is DENIED with regard to the brass file cleaning brush, and with respect to the Tru-sharp Scraper re-conditioner (SKS3376).
You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs and Border Protection personnel, and to the public on the Customs and Border Protection Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
/S/
Myles B. Harmon
Director,
Commercial Rulings Division