CLA-2 OT:RR:CTF:TCM H240511 ALS
Port Director
U.S. Customs and Border Protection
5600 Pearl Street
Rosemont, Illinois 60018
ATTN.: Ms. Mary Lou Belfiore, Supervisory Entry Specialist
RE: Application for Further Review Protest No. 3901-12-101237; Tariff classification of Handles and Kickstands for Measuring Wheels
Dear Port Director:
This letter is in reply to the Application for Further Review (“AFR”) of Protest number 3901-12-101237, filed November 19, 2012, on behalf of Keson Industries, Inc. (“Keson” or “Protestant”). The Protest is against U.S. Customs and Border Protection’s (“CBP”) tariff classification of various handles and kickstands for measuring wheels under subheadings 9017.90.01 and 9017.80.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The articles at issue are various handles and kickstands that are parts for measuring wheels. A measuring wheel consists of a device with a wheel that is attached to a long handle that is fitted with an odometer. The measuring wheel, also known as a surveyor’s wheel, measures distance when it is rolled along a specific length. Some models have a built-in revolution counter that counts each revolution of the wheel(s) to determine the total distance. On some models, the length is marked with paint that is dispensed from an attached container via the handle that pulls a release cable when squeezed. Among the handles at issue, part WP006 includes a steel wire trigger in its grip to allow for release of paint from an attached paint can. The paint can holder is a part of the handle.
The kickstand is a metal bar that is trapezoid or triangle-shaped and is attached to the lug nuts of the axle either on one side or both, depending on the model. The kickstand is positioned upright off the ground when not in use and is swung downward to the ground to prop the measuring wheel upright unassisted by the user. The protestant describes the subject handles and kickstands and claims an HTSUS subheading for each as follows:
Part Number Model Number Description Claimed HTSUS
WP007 RR112 Handle: round aluminum 9015.90.0090
telescoping tube, PVC
grip, ABS locking nuts
WP131 C318LK-2 Handle: round aluminum 9015.90.0090
telescoping tube, PVS grip, ABS locking nuts
WP131PG RR318N Handle: square steel 9015.90.0090 telescoping tube, ABS/ Rubber grip, ABS section locks
WP151 JL0200 Kickstand: Steel wire 9015.90.0090 form, ABS base
WP152 RR418 Kickstand: Steel wire 9015.90.0090 form, ABS base kickstand
WPl53 RR318N Kickstand: Steel wire form 9015.90.0090 and stainless steel ABS base kickstand
WP006 RRPA18 Handle: Round aluminum 8424.90.9080 tube, ABS grip, ABS paint can holder, ABS guide wheel, steel wire trigger
Keson entered several of these items on February 28, 2012 under HTSUS subheading 9029.90.80. Your office issued a Notice of Action to Keson on May 3, 2012, notifying it that CBP changed the tariff classification of the handles and kickstands to HTSUS subheading 9017.90.01. Your office cited CBP Ruling PD C88889 (June 26, 1998) as rationale for the change, noting that PD C88889 ruled upon similar items.
ISSUES:
Are the various handles for measuring wheels, with the exception of part WP006, properly classified under heading 9017 of the HTSUS or under heading 9015 of the HTSUS? Is part WP006, another measuring wheel handle, properly classified under heading 9017 of the HTSUS or under heading 8424 of the HTSUS? Are the various kickstands for measuring wheels properly classified under heading 9017 of the HTSUS or under heading 9015 of the HTSUS?
LAW AND ANALYSIS:
Initially, CBP notes that the Protest was timely filed on November 19, 2012, which is within 180 days of the liquidation date of May 25, 2012. See 19 U.S.C. §1514(c)(3). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). Further Review of Protest No. 3901-12-101237 is properly accorded to the Protestant pursuant to 19 CFR 174.24(c).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order.
HTSUS terms are to be construed in accordance with their common and commercial meanings, which are presumed to be the same absent legislative intent to the contrary. See Len-Ron Manufacturing Co., Inc. v. United States, 334 F.3d 1304, 1309. When the classification of an article is controlled by its use, it must be classified in accordance with its principal use “in the United States at, immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong.” See Lenox Collections v. United States, 20 CIT 194, 196 (1996).
The following headings of the 2012 HTSUS, Basic Edition are under consideration in this case:
For all parts except part WP006--
9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof:
9015.90.00 Parts and accessories . . . . . . . . . . . . . . . . . . . . . . . . . . .
For all parts--
9017 Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof:
9017.90.01 Parts and accessories . . . . . . . . . . . . . . . . . . . . . . . . . . .
For part WP006--
8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:
8424.90 Parts:
8424.90.90 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
As noted above, the protestant now asserts that the articles at issue are, except for part WP006, classifiable under HTSUS subheading 9015.90.0090 as other parts of surveying equipment. The protestant now asserts that part WP006 is classifiable under HTSUS subheading 8424.90.9080 as a part of a mechanical appliance for dispersing or spraying liquids.
The Protestant contends that the subject articles, except part WP006, are “of the same class or kind” as surveying instruments and that their principal use is as surveying instruments. The Protestant cites two Court of International Trade cases that define “surveying” as “the science of finding the relative position on or near the earth’s surface. Boundaries, areas, elevations, construction lines, or artificial features are determined by the measurement of horizontal and vertical distances and angles and by computations based in part on the principles of geometry and trigonometry.” See Agatec Corporation v. United States, 31 CIT 847 (2007) and Heli-Support, Inc. v. United States, 26 CIT 352 (2002). The Protestant also cites Heli-Support to note that the court held that the “interpretation of heading 9015 to include only instruments ‘used in the practice and science of surveying by a surveyor’ was incorrect.” Heli-Support at 356.
The Protestant argues that heading 9015 is broad enough in scope to include more than just instruments “used in the practice and science of surveying,” again citing Heli-Support. The Protestant also notes that the Explanatory Note (EN) for heading 9015 excludes, among other things, “[m]easuring instruments of Heading 90.17 consisting of a steel band, waterproof tape, etc., and similar unspecified devices for taking linear measurements.” The Protestant contends that the EN for heading 9017, in stating that “this heading includes drawing, marking out or mathematical calculating instruments. It also includes instruments for measuring length, for use in the hand…,” excludes instruments that cannot be held in the hand in order to measure objects.
We note at this point that in understanding the language of the HTSUS, the Explanatory Notes of the Harmonized Commodity Description and Coding System (“ENs”), which constitute the official interpretation of the Harmonized System 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 Protestant also contends that subject articles are classifiable under heading 9015 because of the criteria established in the court case United States v. Carborundum Company, 63 CCPA 98, 536 F.2d 373, cert. denied 429 U.S. 979 (1976). These criteria have come to be known as the “Carborundum factors” and they include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale, the manner in which the article is advertised and displayed, and the usage of the merchandise.
The protestant argues that the subject measuring wheels are classifiable under headings 9015 and 8424, as noted above, because they “have the general physical characteristics of surveying equipment” and are distributed through channels of trade for surveying equipment and are advertised as such. The protestant has submitted an affidavit from Mr. Aaron Nosek, President of Keson Industries, in which he states that Keson sells the subject measuring wheels to resellers who are in the business of distributing or reselling measuring wheels to persons engaged in the business of surveying. Attached to the affidavit are three invoices indicating Keson’s sale of measuring wheels to three different companies. All three companies do in fact sell surveying equipment.
In noting that “several courts have considered the definition of ‘surveying’ or similar items, notably [Heli-Support, Inc., supra] and [Agatec Corp., supra],” the protestant fails to note the court’s findings in those rulings. In Agatec, the court found that surveying requires more than “mere surface examinations.” Agatec at 852, citing Heli-Support. The court in Agatec noted that it did in fact rely on three definitions of “surveying” to reach its decision in Heli-Support. In a recent CBP ruling, we discussed Agatec as such:
Most recently, in Agatec Corp. v. United States, 31 C.I.T. 847 (2007), the CIT classified laser levels. There, the court applied the three dictionary definitions of the terms “survey” and “surveying” that had been used in Heli-Support to interpret heading 9015, HTSUS. Agatec, 31 C.I.T. 852-853. Under these definitions, “surveying,” according to the Columbia Encyclopedia (2d ed. 1950), is defined as “the science of finding the relative position on or near the earth's surface. Boundaries, areas, elevations, construction lines, and geographical or artificial features are determined by the measurement of horizontal and vertical distances and angles and by computations based in part on the principles of geometry and trigonometry.” Id. at 852-853. Encyclopedia Americana (1953) defined “surveying” as:
the science of determining the positions of points on the earth's surface for the purpose of making there from a graphic representation of the area. By the term earth's surface is meant all of the earth that can be explored -- the bottoms of seas and rivers, and the interior of mines, as well as the more accessible portions. It includes the measurement of distances and angles and the determination of elevations.
Id. at 853. Lastly, Webster's Third New International Dictionary of the English Language (1981) (“Webster's”) defined “surveying” as:
1. Survey: . . . 2: to determine and delineate the form, extent, and position of (as a tract of land, a coast, or a harbor) by taking linear and angular measurements and by applying the principles of geometry and trigonometry . . . . 2. Survey: . . . 3a: the process of surveying an area of land or water: the operation of finding and delineating the contour, dimensions, and position of any part of the earth's surface whether land or water (a topographic and hydrographic, of a locality)…
Id. at 853.
In analyzing whether the laser levels at issue could be considered “surveying instruments” of heading 9015, the Agatec court found that not only did it have to apply the above-cited dictionary definitions, but also that it had to consider the principal use of the levels at issue. Id. at 853. The court noted that all three dictionary definitions invoked “the earth’s surface” as a benchmark for the surveying measurements. By contrast, the laser levels at issue “operated chiefly in a construction environment and [were] not principally measuring positions relative to the earth’s surface.” Id. at 853-854. The court also considered Webster’s alternative definition of “survey,” which did not mention the earth’s surface but instead required “the taking of linear and angular measurements and the application of geometric and trigonometric principles.” Even applying this definition, however, the court found the laser levels at issue to be deficient because they were limited to measurement in one dimension, and no evidence was produced to show how geometric or trigonometric principles may be applied to the tool’s measurements. Id. at 855. Furthermore, the CIT found the laser levels to be incapable of spatial measurement, as required by all three definitions, because they could not measure distance without the help of a mounted receiver device. Id. at 854-855.
CBP Ruling HQ H218087 (June 18, 2014).
In the present case, the handles and kickstands, except for part WP006, are parts of measuring wheels that determine distances by rolling along the earth’s surface, as one definition requires. No evidence has been offered, however, to show how the measuring wheels take “angular measurements,” nor how “geometric and trigonometric principles” can be applied to the measuring wheels’ readings to produce multi-dimensional results. Just as we found with the laser levels in HQ H218087, the measuring wheels in this case are limited to measurement in one dimension, linear or spatial, or more specifically, distance. In particular, while the measuring wheels do produce spatial measurements, they do not produce angular measurements. Thus, the measuring wheels do not meet the definition of surveying equipment within the meaning of HTSUS heading 9015. Therefore, the parts of the measuring wheels are not classifiable under heading 9015.
Incidentally, with regard to the Protestant’s citing of United States v. Carborundum, supra, we are not aware of any court or administrative case that affirmatively finds heading 9015 to be a use provision governed by Additional U.S. Rule 1(a), which states: “1) In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use...”
It is no question that the measuring wheels are “instruments for measuring length” as provided for in HTSUS heading 9017. No other apparent use is suggested or apparent from their description and function. Thus, measuring length is in fact the principal use of the measuring wheels. Given such and the fact that the measuring wheels are not classifiable under heading 9015, we find that the subject handles, except for part WP006, and kickstands are properly classified under HTSUS heading 9017 as parts of instruments for measuring length.
With regard to part WP006, we agree with the protestant that it is a part of an article that performs two complementary functions, measuring distances and marking lines on a surface with paint. We also agree that in accordance with HTSUS Section XVI Note 3 and HTSUS Chapter 90 Note 3, which require that an article which performs more than one function should be classified according to its principal function, the principal use of measuring wheels that also mark lines on a surface with paint is that of paint sprayer/line marker. Consequently, its principal use does not place a measuring wheel with a paint applicator within HTSUS Chapter 90. Therefore, part WP006 is properly classified under HTSUS heading 8424 as a part of a mechanical appliance that disperses liquids.
HOLDING:
Except for part WP006, the subject handles and kickstands of measuring wheels are properly classified under HTSUS subheading 9017.90.01, which provides for “[I]nstruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof: Parts and accessories...” The general column one rate of duty, for merchandise classified in this subheading is “[t]he rate applicable to the article of which it is a part or accessory.” The duty rate of measuring wheels, which these handles and kickstands are parts of, as “Other instruments” under HTSUS heading 9017 is 5.3% ad valorem.
Part WP006 is properly classified under HTSUS subheading 8424.90.90, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids...: Parts: Other...” The general column one rate of duty, for merchandise classified in this subheading is free.
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.
The Protest should be DENIED with respect to all articles at issue except part WP006. The Protest should be ALLOWED only with respect to part WP006. A copy of this ruling should be attached to the CBP Form 19 and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Joanne Roman Stump, Acting Director
Commercial and Trade Facilitation Division