CLA-2 OT:RR:CTF:CPM H280956 RGR
Port Director
Port of Norfolk
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510
Attn: Waiyin Lee, Senior Import Specialist
RE: Application for Further Review of Protest No. 1401-16-100086; Tariff classification of tongue and groove pliers
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1401-16-100086, timely filed by Barnes, Richardson & Colburn, LLP, on behalf of Apex Tool Group (“Protestant”), on July 20, 2016, regarding the classification of tongue and groove pliers, under the Harmonized Tariff Schedule of the United States (“HTSUS”). Samples were provided to this office upon our request.
FACTS:
The protested merchandise consists of one entry of tongue and groove pliers, which includes an RT412CV 12” V-Jaw tongue and groove pliers and a three-piece adjustable tongue and groove pliers set with offset jaws. The pliers at issue are designed with jaws that can adjust to multiple positions at a variety of widths and have handles that are at an angle to the jaws. They are also characterized by a slip joint, which allows the user of the pliers to move the handles apart to increase jaw size and enlarge grip capacity.
The protested entry of tongue and groove pliers was entered on April 29, 2016 at the Port of Norfolk (“Port”), under subheading 8203.20.6030, HTSUS, as “[f]iles, rasps, pliers (including cutting pliers), pincer, tweezers, metal cutting shears, pipe cutters, bolt cutter, perforating punches and similar handtools, and base metal pars thereof: [p]liers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof: [o]ther: [o]ther (except parts): [p]liers.” On May 11, 2016, U.S. Customs and Border Protection (“CBP”) issued a Proposed Notice of Action, informing the Protestant that the subject merchandise and would be more appropriately classified in subheading 8203.20.4000, HTSUS, as “[f]iles, rasps, pliers (including cutting pliers), pincer, tweezers, metal cutting shears, pipe cutters, bolt cutter, perforating punches and similar handtools, and base metal pars thereof: [p]liers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof: [o]ther: [s]lip joint pliers.” In a letter dated May 26, 2016, the Protestant responded to the Proposed Notice of Action, explaining that it disagreed with CBP and requesting liquidated of the entry as submitted by the Protestant. Subsequently, CBP issued a final Notice of Action on June 3, 2016, informing the Protestant of liquidation of the merchandise in subheading 8203.20.4000, HTSUS, at a 12% ad valorem rate of duty. Protestant filed this Protest and AFR on July 20, 2016, asserting that the subject merchandise is properly classified under subheading 8203.20.6030, HTSUS, as “other” pliers.
ISSUE:
Whether tongue and groove pliers are classified under subheading 8203.20.40, HTSUS, as “slip joint pliers” or under subheading 8203.20.60, HTSUS, as “other” pliers.”
LAW AND ANALYSIS:
The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation on June 24, 2016. See 19 U.S.C. § 1514(c)(3).
Further Review of Protest No. 1401-16-100086 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c). Specifically, Protestant alleges that New York Ruling Letter (“NY”) 810954 (June 6, 1995), NY N074397 (Sep. 4, 2009), and NY N089837 (Jan. 14, 2010) are incorrect and inconsistent with the weight of available authority. Accordingly, because the decision against which this protest was filed is alleged to involve matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts, but facts are alleged or legal arguments presented which were not considered at the time of the original ruling, we find that further review of Protest No. 1401-16-100086 is warranted.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). 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. Additional U.S. Rule of Interpretation (“AUSRI”) 1(a) provides that 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.
The 2016 HTSUS subheadings under consideration are as follows:
8203 Files, rasps, pliers (including cutting pliers), pincer, tweezers, metal cutting shears, pipe cutters, bolt cutter, perforating punches and similar handtools, and base metal pars thereof: [p]liers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof:
8203.20 Pliers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof:
8203.20.20 Tweezers
Other:
8203.20.40 Slip joint pliers
8203.20.60 Other (except parts)
There is no dispute at the heading level that the subject merchandise is described by the terms of heading 8203, HTSUS, or by the terms of subheading 8203.20, HTSUS. Instead, the dispute is solely at the 8-digit level and whether the subject merchandise consists of “[s]lip joint pliers” or “[o]ther” pliers. In addition, the Protestant challenges three prior rulings relied upon by CBP in denying its protest, specifically NY 810954 (June 6, 1995); NY N074397 (Sep. 4, 2009); and NY N089837 (Jan. 4, 2010), which classified merchandise described as “groove joint pliers” in subheading 8203.20.4000 as slip joint pliers.
The Protestant argues that the subject pliers are distinct from pliers commonly known as slip joint pliers, where slip joint pliers are a specific form of adjustable jaw pliers and are distinguishable from other adjustable pliers including tongue and groove pliers. Specifically, the Protestant argues that slip joint pliers are limited to pliers with jaws adjustable to two positions, whereas tongue and groove pliers are adjustable to multiple positions. The Protestant further asserts that slip joint pliers are distinct from tongue and groove pliers because slip joint pliers have their jaws in alignment with the handles whereas tongue and groove pliers have jaws that are at an angle to the handles.
“Slip joint” is not defined in the tariff schedule or in the Explanatory Notes. A tariff term that is not defined in the HTSUS is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA) Inc. v. United States, 69 C.C.P.A. 89, 92 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 134, 673 F.2d 1268, 1271 (1982). The Protestant has provided multiple lexical definitions of “slip joint pliers” that define such pliers based on them having joints adjustable to two positions. It argues that such dictionary definitions, particularly a 1986 definition from shortly before the implementation of the HTSUS, is strong evidence that Congress intended to limit slip joint pliers to pliers with only two settings. In addition, the Protestant also cites to instances where slip joint pliers and tongue and groove pliers were set forth as separate categories in catalogs for marketing purposes. However, based on our research, tongue and groove pliers are also described as a type of slip joint pliers. In general, the defining feature of slip joint pliers is not the number of jaw positions that are adjustable but rather, the type of joint. Further to the point, the characteristic that gives these pliers their name is its slip joint, which allows the user of the pliers to move the handles apart to increase the jaw size and enlarge the grip capacity. We also note that based on our research, tongue and groove pliers are regularly marketed as slip joint pliers. In fact, one of the pliers at issue in this AFR, the RT412CV 12” V-Jaw tongue and groove pliers, which is manufactured by Crescent, is identified on Crescent’s website within the slip joint category of pliers. Thus, even the manufacturer of one of the protested pliers concedes that it is a type of slip joint pliers. In sum, we do not find the Protestant’s argument convincing that Congress intended the HTSUS to limit slip joint pliers to pliers with only two settings.
In addition, the Protestant asserts that technical specifications from the American Society of Mechanical Engineers (“ASME”) make a distinction between tongue and groove pliers and slip joint pliers. Specifically, it argues that ASME B107.23-2004, “Pliers: Multiple Position, Adjustable,” categorizes slip joint pliers separately from “adjustable joint, angle nose” pliers.
While industry standards may provide helpful guidance, we note that the distinction in the HTSUS regarding pliers is not on how many adjustments the pliers can make (e.g., two positions or multiple positions), but rather on whether they are adjustable at all. In examining the breakdown of the subheadings, subheading 8203.20, HTSUS, covers “[p]liers (including cutting pliers), pincers, tweezers and similar tools and parts thereof.” Tweezers are covered in subheading 8203.20.2000, HTSUS. The remaining subheadings are slip joint pliers in subheding 8203.20.4000, HTUS, and other pliers in subheading 8203.20.6030, HTSUS. In analyzing the remaining tariff terms within subheading 8203.20 (as tweezers fall within 8203.20.20, HTSUS), we note that “other” than “slip joint” pliers would include “pincers,” “similar tools,” and pliers that are not slip joint pliers. To better understand what sorts of pliers are not slip joint pliers, we note that there are standards and definitions of pliers issued by a number of industry organizations, including the ASME and the Institute of Electrical and Electronics Engineers (“IEEE”). Distinguishing pliers based on the type and adjustability of the joint rather than on how much adjustment the pliers can make is supported by the IEEE, which distinguishes between two broad categories, solid joint pliers and slip joint pliers. The IEEE defines solid joint pliers as fixed and slip joint pliers as adjustable. Furthermore, the Commercial Item Description for “Pliers, Slip Joint (Line Clamp), A-A-2971A, dated February 5, 2002, states that the slip joint pliers “shall be provided with a three-hole slip joint adjustment.”
In addition, ASME standard B107.23-2004 places all adjustable pliers, including slip joint pliers and tongue and groove-style pliers in the same standard for “Multiple Position, Adjustable” pliers. The ASME has separate standards for other types of pliers that are distinct from adjustable pliers, including ASME B107.11 for diagonal cutting and end cutting pliers; ASME B107.13 for long nose and long reach pliers; ASME B107.18 for wire twister pliers; and ASME B107.20 for lineman’s, iron worker’s, gas, glass, fence, and battery pliers. Thus, the fact that slip joint pliers with two adjustable positions and tongue and groove pliers with multiple adjustable positions fall within the same standard for adjustable pliers provides further credence to CBP’s position that the distinction in the tariff schedule is on whether the pliers are adjustable. Thus, the protested merchandise, consisting of adjustable tongue and groove pliers with a slip joint for moving the handles apart to increase the jaw size and enlarge the grip capacity, are classified based on whether they are adjustable. Based on this adjustability, the protested merchandise is classified in subheading 8203.20.4000, HTSUS, as “slip joint” pliers.
In classifying the protested merchandise, the Port relied upon the classification of groove joint pliers as slip joint pliers under subheading 8203.20.4000, HTSUS, in NY 810954 (June 6, 1995); NY N074397 (Sep. 4, 2009); and NY N089837 (Jan. 4, 2010). We note that the description of groove joint pliers in NY 810954, NY N074397, and NY N089837 match those of the protested merchandise. In addition, upon examination of photos of the groove joint pliers classified as slip joint pliers in NY N074397 and NY N089837, those pliers appear identical to the samples of the protested merchandise. Thus, relying on our rulings in NY 810954, NY N074397, and NY N089837, we also find that the protested merchandise is correctly classified in subheading 8203.20.4000, HTSUS.
Therefore, we find that the subject tongue and groove pliers are classified under subheading 8203.20.4000, HTSUS, as “[f]iles, rasps, pliers (including cutting pliers), pincer, tweezers, metal cutting shears, pipe cutters, bolt cutter, perforating punches and similar handtools, and base metal pars thereof: [p]liers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof: [o]ther: [s]lip joint pliers.”
HOLDING:
By application of GRI 1, the subject tongue and groove pliers are classified in subheading 8203.20.4000, HTSUS, as “[f]iles, rasps, pliers (including cutting pliers), pincer, tweezers, metal cutting shears, pipe cutters, bolt cutter, perforating punches and similar handtools, and base metal pars thereof: [p]liers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof: [o]ther: [s]lip joint pliers.” The column one, general rate of duty is 12 percent ad valorem.
The Protest is DENIED.
In accordance with Section 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. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of this letter, the Office of Trade will make this letter available to CBP personnel and to the public on the CBP 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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division