CLA-2 OT:RR:CTF:TCM H171296 TNA
Henry K. Lee, Brokerage Supervisor
Phoenix International Freight Services Ltd.
19701 S. Vermont Ave.
Torrance, CA 90502
RE: Tariff classification of predrilled aluminum poles
Dear Mr. Lee:
This is in response to your request on behalf of your client, Dayco Industries, Inc. (“Dayco”), submitted on March 15, 2011 and supplemented on May 3, 2011, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division, for a binding ruling on the tariff classification of predrilled aluminum poles under the Harmonized Tariff Schedule of the United States (“HTSUS”). You also requested that the ruling address whether antidumping duties would apply to this merchandise. Your ruling request, along with pictures of the merchandise, was forwarded to this office for a response.
FACTS:
The subject merchandise consists of aluminum poles made of series #6063-T832 drawn aluminum. They are imported predrilled with four holes at one end to allow for the connection of various attachments such as plastic brushes with synthetic bristles, brush frames, and vacuum handles. The vacuum handles attach to a vacuum device that is not sold with the poles.
The poles can be imported in different lengths. The poles in the submitted pictures are approximately six feet long and have a six inch plastic handle. When completely extended, the length of the pole almost doubles, and the plastic handle, which tightens, allows the user to adjust the pole to the desired length. As imported, the poles are ready for retail sale without any further work; however, they are not packaged for retail sale when imported and would have to be repackaged before being sold to the ultimate consumer. The poles can be imported in the same shipment the attachments or on their own. They are sold at retail outlets such as Home Depot, Lowe’s, and Leslie’s Pool Products.
ISSUES:
Whether the subject poles are classified in heading 9506, HTSUS, as pool accessories or in heading 7616, HTSUS, as other articles of aluminum?
Whether the subject merchandise is subject to antidumping duties?
LAW AND ANALYSIS:
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 HTSUS provisions under consideration in this case are as follows:
7616 Other articles of aluminum:
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:
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN for heading 7616, HTSUS, states, in pertinent part, the following:
This heading covers all articles of aluminium other than those covered by the preceding headings of this Chapter, or by Note 1 to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature.
The EN for heading 9506, HTSUS, states, in pertinent part, the following:
This heading covers:…
(C) Swimming pools and paddling pools.
You argue that the subject merchandise should be classified in heading 9506, HTSUS, as pool accessory. The term “accessory” is not defined in the HTSUS or the ENs. However, in Rollerblade v. United States, the Court of International Trade derived a common and commercial meaning of the term “accessory” from various dictionaries. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (CIT 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002). There, the court held that that an accessory must relate directly to the thing accessorized, and that, as a result, inline roller skating protective gear was not an accessory because it did not directly act on or contact the roller skates in any way. Id. at 1253, 1254. Furthermore, CBP has stated that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must contribute to the effectiveness of the principal article (e.g., they must facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See HQ 958710, dated April 8, 1996; HQ 950166, dated November 8, 1991; HQ 966216, dated May 27, 2003.
Thus, for the subject poles to be considered an “accessory” of heading 9506, HTSUS, they must contribute directly to the effectiveness of the primary article, which is a swimming pool, and they must be suitable for use solely or principally with a swimming pool. In HQ 950166, dated November 8, 1991, CBP classified a hinged fin that attached to the shaft of a swimming pool cleaning brush as a pool accessory of heading 9506, HTSUS. There, we reasoned that the fin increased the effectiveness of the brush in cleaning pools and removing algae build-up. Thus, we stated that the fin, while not essential to the function of a swimming pool or its cleaning, did contribute to the effective and convenient care and maintenance of the pool. See HQ 950166. Pool skimmers that remove leaves and other debris from the surface of the pool’s water have also been classified as pool accessories. See, e.g., NY E89732, dated November 17, 1999; NY C87900, dated June 4, 1998. Furthermore, CBP’s definition of a pool accessory has also encompassed items such as testing kits and thermometers for pools and spas. See HQ 953896, dated February 2, 1994; HQ 952716, dated March 3, 1993.
In the present case, the subject poles are imported either alone or with attachments. In either case, the poles contain drilled holes that accommodate plastic brushes, brush frames, and vacuum handles. Upon examination of the poles, however, we see nothing that would definitively determine that the poles can only be used with Dayco’s brushes, frames, and handles. To the contrary, the merchandise’s product listing on websites such as Home Depot indicate that they “accept most standard cleaning tools.” See, e.g., http://www.homedepot.com/h_d1/N5yc1v/R100141787 /h_d2/ProductDisplay?langId=1&storeId=10051&catalogId=10053. Thus, the subject poles could be used with any cleaning attachment of the correct size.
This is in contrast to the hinged fin of HQ 950166 because the fin could only be attached to the shaft of a brush that was only used for cleaning pools. There, the fin exerted a forward pressure that forced the bristles against the pool side, a motion that would not be needed in more general cleaning material. Here, by Dayco’s admission, the poles can be used with various cleaning tools.
Lastly, the sticker of your customer, Pentair Pool Products, is an insufficient and impermanent means to establish the use of an otherwise indistinguishable aluminum pole. As such, the subject poles cannot be said to be pool accessories of heading 9506, HTSUS. Therefore, because they are made of aluminum, these poles are classified in heading 7616, HTSUS, as other articles of aluminum. Specifically, they are classified in subheading 7616.99.50, HTSUS, which provides for “Other articles of aluminum: Other: Other: Other.” We note that this was the classification you requested in your first ruling request, dated March 15, 2011.
In your ruling request, you argue that as imported in groups of poles or as poles and attachments, the poles constitute a set under GRI 3(b), and that the poles impart the merchandise’s essential character. GRI 3(b) states:
Mixtures, composite goods consisting or different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
Explanatory Note X to Rule 3(b) states, in pertinent part:
For the purposes of this rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings….
Consist of products or articles put up together to meet a particular need or carry out a specific activity; and
Are put up in a manner suitable for sale directly to consumers without repacking…
In the present case, the subject merchandise cannot be considered a set for the purposes of GRI 3(b). When the poles are imported separately, even if there were multiple poles in the packaging, each pole would be classified in the same heading, thereby failing the first criterion of Explanatory Note X to GRI 3(b). Furthermore, the poles, when they are imported with the attachments, are not imported packaged for retail sale. To the contrary, they need to be repackaged before they are sold to consumers. As such, they fail the third criterion of Explanatory Note X to GRI 3(b). Thus, the subject merchandise cannot be considered a set for the purposes of GRI 3(b).
With respect to the issue of whether the subject merchandise is subject to anti-dumping duties, on January 4, 2011, the U.S. Department of Commerce, International Trade Administration (ITA), published Anti-Dumping Duty Order A-570-967 for aluminum extrusions from the People’s Republic of China. See 76 Fed. Reg. 323. We note that whether the merchandise at issue is subject to antidumping orders is beyond the administrative authority of CBP. CBP is not charged with the administrative authority to ascertain nor impose antidumping orders. Such authority is within the purview of the ITA, who is not necessarily bound by a country of origin or classification determination issued by CBP with regard to the scope of antidumping orders or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the ITA and are separate from tariff classification and origin rulings issued by CBP. You may contact the ITA at http://www.trade.gov/ia/ (click on “Contact Us”), or at 1-800-872-8723. For further information, you can also view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty investigations”), and you can search AD/CVD deposit and liquidation messages using the AD/CVD Search tool at http://www.cbp.gov (click on “Import” and “AD/CVD”).
HOLDING:
By operation of GRI 1, the subject aluminum poles for pool cleaning are classified under heading 7616, HTSUS. They are specifically provided for in subheading 7616.99.50, HTSUS, which provides for “Other articles of aluminum: Other: Other: Other.” The column one, general rate of duty is 2.5% ad valorem.
CBP does not have the authority to issue a ruling on the issue of whether the subject merchandise is subject to antidumping duties.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch