CLA-2 RR:CTF:TCM H022178 JER
Tariff No.: 8466.10
Port Director
Port of Houston
U.S. Customs and Border Protection
2350 N. Sam Houston Pkwy, Suite 1000
Houston, TX 77032-3126
RE: Application for Further Review of Protest No. 5301-07-100442; pole tool
Dear Port Director:
This is our decision regarding the Application for Further Review of Protest No. 5301-07-100442, timely filed on behalf of Hilti, Inc., (“Hilti”), concerning the classification of “pole tools” under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
According to the submission, the subject “Pole Tools are seven foot modular tool holders, used to hold and trigger Hilti powder actuated fastening tools.” The merchandise is used in situations wherein the powder actuated fastening tool is being used, overhead, or in a manner where an extension is needed such as hard to reach areas. They consist of a grip and lever assembly of plastic and fiberglass with metal fittings. The extension sections are made of fiberglass with metal fittings and have a plastic/fiberglass receptacle into which the powder actuated tool is placed for use. In the receptacle, is a spring loaded trigger which engages the trigger of the powder actuated fastening tool. The entries in question include: the Pole Tool X-PT 35 and the Pole Tool X-PT 351. These articles are used in high volume fastening applications and are similar in all material aspects.
The merchandise at issue was entered on July 24, 2006. The entry was liquidated as entered on June 8, 2007. The protest was timely filed on September 12, 2007, requesting reclassification in subheading 3926.90.98, HTSUS or subheading 8205.59.80, HTSUS.
ISSUE:
Whether the pole tool is classifiable as a hand tool under heading 8205, HTSUS, as a tool holder in heading 8466, HTSUS, or as an other article of plastic in heading 3926, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, on September 12, 2007, within 180 days of liquidation pursuant to Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006).
Further Review of Protest No. 5301-07-100442was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, according to the submission, classification of the subject merchandise has received differing treatment by different Ports. The Port in Dallas initially classified the article in subheading 8466.20, HTSUS, while the Port in Houston classified the item in subheading 3926.90.98, HTSUS.
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 2 through 6 may then be applied in order.
The 2006 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 forgoes; hand-or pedal-operated grinding wheels with frameworks; base metal parts thereof;
Other handtools (including glass cutters) and parts thereof:
8205.59 Other:
8205.80.0000 Anvils; portable forges; hand-or-pedal operated grinding wheels with frameworks; base metal parts thereof…
8466 Parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing headings and other special attachments for machine tools; tool holders for any type of tool for working in the hand:
8466.10.01 Tool holders and self-opening dieheads:
8466.20.0175 Other….
3926 Other articles of plastic and artcles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.9098 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 nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to heading 8466, HTSUS, state that the heading includes:
Tool holders for any type of tool for working in the hand.
Tool holders which hold, guide or operate the working tool and which permit the interchange of such tool pieces. They are of very varied types….
This heading also includes tool holders for any type of tool designed for operation in the hand. Such holders are usually designed for the tools of heading 82.05 or 84.67, but this heading also includes tool holders for flexible shaft outfits. (See also the provisions of the Explanatory Notes to headings 84.67 and 85.01).
Protestant asserts that the subject merchandise is classifiable as a hand tool in heading 8205, HTSUS. In support of this position Protestant cites New York Ruling Letter (“NY”) I81077, dated May 16, 2002, in which CBP held that a “Telepole” with a hook that was used to drop wire in warehouse rafters was classified as a hand tool in heading 8205, HTSUS. The Telepole of NY I81077 expanded to 20 feet in length and was used by installers to thread and drop wire into the warehouse rafters. Alternatively, Protestant contends that the instant pole tool could be classifiable as a tool holder in heading 8466, HTSUS.
Hand tools, included in heading 8205, HTSUS, are not defined in the HTSUS or the ENs. In Headquarters Ruling Letter (“HQ”) 966118, dated September 11, 2003, CBP discussed the scope of heading 8205, HTSUS, concerning the classification of hand tools. In HQ 966118, CBP noted that the Courts have defined hand tool as “any tool which is held and operated by the unaided hands; e.g., a chisel, plane or saw.” Western Oilfields Supply Co. v. United States, 296 F. Supp. 330, 62 Cust. Ct. 182 (1969); Hollywood Accessories, Division of Allen Electronics & Equipment Co. v. United States, 282 F. Supp. 499, 60 Cust. Ct. 360 (1968); F.B. Vandegrift & Co., Inc. v. United States, 65 Cust. Ct. 260 (1970).
Similarly, Note 1 to Chapter 82, HTSUS, states that, with certain exceptions, “this chapter covers only articles with a blade, working edge, working surface or other working part of: (a) Base metal ….” The court in Continental Arms Corp.; Gehrig, Hoban & Co., Inc. v. United States, 65 Cust. Ct. 80, 82 (1970), defined a “working part” as:
…“working part” of a hand tool is that part which performs work on an external object…. that part of the tool which does work in relation to a workpiece or object external to the tool.
Unlike the Telepole of NY I81077, the instant article, by its function and physical description, is not the “working part” of a tool as defined above. The instant merchandise is used to hold and trigger fastening tools. It is specifically used when the fastening tool is being used “overhead or in a manner where an extension is needed…or in other hard to reach spots.” Although, the handle on the subject pole tool engages the pole tool’s trigger mechanism, it is the fastening tool which actually performs the work. As Protestant affirms, the subject “Pole Tool does not hold the material being worked on, but instead holds the tool itself.” Thus, it cannot be said that the subject merchandise is a “working part” as defined above or within the meaning of Note 1 to Chapter 82. Furthermore, the instant merchandise does not include a blade, working edge, working surface or other working part of base metal. Nor does it include a “working part” which actually performs the work. Hence, the subject merchandise does not meet the definition of a hand tool as discussed in HQ 966118 and the Court cases cited above. Accordingly, we find that the subject pool tool is not classifiable as a hand tool in heading 8205, HTSUS.
Moreover, as Protestant affirms, the subject merchandise is an accessory suitable for use solely or principally with Hilti hand-held powder actuated fastening tools. Powder actuated fastening tools are themselves classified as hand tools in heading 8205, HTSUS. Likewise, heading 8205, HTSUS, does not provide for accessories within the meaning of the term. Hence, the subject merchandise is not classifiable in heading 8205, HTSUS.
Instead, the instant merchandise is similar to articles which have been classified as “tool holders” in heading 8466, HTSUS. For instance, in HQ H017918, dated December 28, 2007, CBP classified an extendable tree pruner in heading 8466, HTSUS. The article of HQ H017918 included an aluminum “telescoping pole” which extended approximately five feet and was used to allow the saw head or pruner head (i.e., the “working part”) to reach overhead tree limbs and foliage. Like the telescoping pole of HQ H017918, the subject pole tool, assists in the operation of the fastening tool by 1) extending its reach, 2) by holding and guiding the working part and 3) by facilitating its operation by means of a trigger. Similarly, the subject merchandise is described by the ENs to heading 8466, HTSUS, as it holds, guides and operates the fastening tool and permits the interchangeability of such fastening tools. Therefore, we find that the subject merchandise meets the definition of a tool holder within the meaning of heading 8466, HTSUS.
We note that heading 3926, HTSUS, is a residual provision which provides for other articles of plastics not elsewhere specified or included. The Court has held that basket or residual provisions “are intended as a broad catch all to encompass the classification of articles for which there is no more specifically applicable subheading. “EM Indus., v. United States, 22 CIT 156, 165, 999 F. Supp. 1473, 1490 (1998). In the instant case, tool holders are more specifically provided for in heading 8466, HTSUS.
HOLDING:
By application of GRI 1 the subject merchandise is classified under heading 8466, HTSUS. It is specifically provided for under subheading 8466.10.0175, HTSUS, which provides for “Parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing headings and other special attachments for machine tools; tool holders for any type of tool for working in the hand: Tool holders and self-opening dieheads: Other.” The 2006 column one, general rate of duty is 3.9% ad valorem.
Since reclassification of the merchandise will result in a lower rate of duty than the liquidated rate, you are instructed to allow the Protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division