OT:RR:CTF:CPMM H304259
Port Director
U.S. Customs and Border Protection
Port of Chicago
5600 Pearl Street
Rosemont, IL 60018
RE: Application for Further Review of Protest No. 3901-17-101718; Tariff classification of pry bar nail pullers
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3901-17-101718, timely filed on August 8, 2017, on behalf of Estwing Manufacturing Co. Inc. (“Protestant” or “Estwing”). This AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of four (4) styles of pry bar nail pullers. No samples were provided to our office but the Protestant included pictures and descriptions of the subject merchandise in its submission.
FACTS:
The protested merchandise consists of four (4) styles of pry bar nail pullers. Item number DEP12 is described as a 12-inch steel nail puller designed to remove imbedded or headless nails. It incorporates a rounded split-claw head on one end for improved leverage and a thin split-claw design on the other. Item numbers PC210G and PC250G are described as a 9-inch Pro-Claw nail puller and a 10.6-inch Pro-Claw nail puller, respectively. They are designed to remove imbedded or headless nails. Both styles incorporate a right-angle split-claw head on one end and a thin split-claw design on the other. The right-angle design facilitates improved leverage. Item number HC-10 is described as a Handy Claw steel pry bar with vinyl grip, which is used for getting under and removing nails. It incorporates a rounded, claw-type head and a comfort grip handle. All four (4) styles under consideration have curved ends with a small fissure or split for removing nails while their curved heads provide leverage for prying, dislodging, or separating items. They are also marketed on the Estwing’s website under “Prybars.”
The protested merchandise consists of one (1) entry that was entered at the Port of Chicago (“Port”) on May 7, 2017, and was liquidated on July 7, 2017, under subheading 8205.59.5560, HTSUSA (“Annotated”) (2017), as “Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Other: Other: Of iron or steel: Other…Other (including parts),” at a duty rate of 5.3% ad valorem. Estwing filed this Protest and AFR on August 8, 2017, asserting that the subject merchandise is properly classified under subheading 8205.59.3010, HTSUSA (2017), as “Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Other: Crowbars, track tools and wedges, and parts thereof…Crowbars.”
ISSUE:
Whether pry bar nail pullers are classified under subheading 8205.59.55, HTSUS (2017), as “Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Other: Other: Of iron or steel: Other…” or under subheading 8205.59.30, HTSUS (2017) as “Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Other: Crowbars, track tools and wedges, and parts thereof.”
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 of the entries. See 19 U.S.C. § 1514(c)(3).
Further Review of Protest Number 3901-17-101718 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) and (b) 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, or with a decision made at any port with respect to substantially similar merchandise. Protestant also alleges that this protest involves questions of law or fact which have not been decided on by CBP or by the Customs courts. Specifically, the Protestant argues that the Port’s liquidation of the protested merchandise is inconsistent with New York Ruling Letter (“NY”) M87862, dated November 9, 2006, and NY R01939, dated May 27, 2005, in which CBP classified similar steel bars used for prying objects and pulling nails in subheading 8205.59.30, HTSUS, as “crowbars, track tools and wedges, and parts thereof.” Protestant alleges that the subject pry bar nail pullers should be similarly classified in subheading 8205.59.30, HTSUS.
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 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context otherwise requires.
The 2017 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 or water-jet cutting machines; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof:
Other handtools (including glass cutters) and parts thereof:
8205.59 Other:
8205.59.30 Crowbars, track tools and wedges, and parts thereof…
8205.59.3010 Crowbars.
Other:
Of iron or steel:
8205.59.55 Other…
8205.59.5560 Other (including parts).
* * * *
There is no dispute at the six digit level that the protested merchandise is classified in subheading 8205.59, HTSUS, as “Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Other.” Instead, the dispute arises at the eight digit level as to whether or not the protested merchandise are “crowbars, track tools and wedges, and parts thereof” of subheading 8205.39.30, HTSUS, or “other” (than crowbars, track tools and wedges) of subheading 8205.59.55, HTSUS.
The Protestant asserts that the subject pry bar nail pullers are “crowbars” of subheading 8205.59.30, HTSUS. They explain that the subject merchandise is uniquely designed to be used as a lever to pry apart objects, including the removal of nails, and are marketed and used as such. The Protestant also cites to various dictionary and Wikipedia definitions, as well as NY M87862 and NY R01939, supra, in support of its argument that the subject pry bar nail pullers should be classified as “crowbars” of subheading 8205.39.30, HTSUS.
“Crowbar” 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 term “crowbar” is defined in the Cambridge English Dictionary as “a heavy, iron bar with a bend end that is used to lift heavy objects off the ground or to force things open.” It is similarly defined in the online Merriam-Webster Dictionary as “an iron or steel bar that is usually wedge-shaped at the working end for use as a pry or lever.” The four (4) styles of pry bar nail pullers at issue are all capable of dislodging nails while their curved heads provide leverage for prying, dislodging, or separating items. Moreover, they are marketed on Estwing’s website under “Prybars.”
Additionally, CBP has defined the term “crowbar” and described its functions in past rulings. For example, in NY M87862, CBP explained that “any bar capable of dislodging nails and prying, dislodging or separating, meets the common and commercial meaning of a crowbar.” In NY N151995, dated March 11, 2011, CBP also explained that “[c]rowbars are capable of dislodging nails and also prying or separating other material.”
In support of its assertion that the subject merchandise is classified in subheading 8205.59.30, HTSUS, the Protestant cited to NY M87862 and NY R01939, arguing that the merchandise in those rulings consists of substantially similar nail pullers classified in subheading 8205.59.30, HTSUS. In NY M87862, CBP classified a set of five steel bars, with each bar having a slotted claw at one end for pulling nails and design features that allow them to be used for prying, in subheading 8205.59.30, HTSUS, as crowbars. CBP noted that consideration was given to classification in subheading 8205.59.55, HTSUS, but it rejected this classification because the definition of crowbar includes “any bar capable of dislodging nails and prying, dislodging or separating.” In particular, the merchandise in NY M87862 was capable of both pulling nails and prying or separating items. Similarly, the merchandise in NY R01939, described as a carbon steel utility scraper pry bar that is a combination, all-in-one chisel, scraper, pry bar and nail puller, was also classified in subheading 8205.59.30, HTSUS.
On the other hand, the Port relied on NY N004118, dated December 14, 2006, and NY N151995, which classified items identified as “nail pullers” in subheading 8205.59.55, HTSUS, in liquidating the merchandise under that heading. In NY N004118, the merchandise is described as a nail puller with a lever arm attached to a base plate, with gripping “teeth” attached to both. The nail puller functions as follows: “the tool is placed with the teeth astride the nail, and the lever is moved as to bring the teeth together. As a manual horizontal force is applied to the lever arm, a gripping force is applied to the shank of the nail by the gripping teeth, thus removing the nail from the lumber or deck board.” Based on this description, the only function performed by the merchandise in NY N004118 is nail pulling. It is not able to pry, dislodge, lift or separate items as crow bars do. Therefore, the merchandise in NY N004118 was correctly classified as a nail puller of subheading 8205.59.55, HTSUS. In NY N151995, the nail puller was classified in subheading 8205.59.55, HTSUS rather than in subheading 8205.59.30, HTSUS, because the merchandise was specifically designed to pull nails from a work piece but was not designed to pry or separate other material; therefore, classification as a crowbar of subheading 8205.59.30, HTSUS, would not be appropriate.
While NY N004118 and NY N151995 correctly classified the merchandise at issue in those rulings, CBP’s reliance on them in classifying the protested merchandise was inappropriate as the merchandise in those rulings is not substantially similar to the protested merchandise. Unlike the merchandise in those rulings, which were only capable of pulling nails, Estwing’s pry bar nail pullers are capable of more than just pulling nails. A review of Eswting’s online marketing material indicates that the tools are marketed as pry bars. Although the Protestant’s website describes the four styles as being used to remove nails, we believe that their rounded claw-type heads with a right angle design give them leverage for prying, dislodging, lifting or separating objects, which meets the common commercial and meaning of “crowbar,” as well as CBP’s definition of “crowbar” set forth in NY N151995. Accordingly, classification in subheading 8205.59.55, HTSUS, is inappropriate as the protested merchandise is capable of dislodging nails and also prying or separating other material. Therefore, the subject pry bar nail pullers, which are substantially similar to the multi-function crowbars in NY M87862 and NY R01939, are classified in subheading 8205.59.30, HTSUS.
Because we now find that the subject merchandise is properly classified in subheading 8205.59.39, HTSUS, we do not need to address Protestant’s argument as to whether CBP’s issuance of CBP Form 29 Notice of Action, dated June 15, 2017, was in violation of the notice and procedural requirements of 19 U.S.C. § 1625.
HOLDING:
By application of GRIs 1 and 6, the four models of pry bar nail pullers are classified in heading 8205, HTSUS, and specifically in subheading 8205.59.3010, HTSUSA (2017), which provides for “Handtools (including glass cutters) not elsewhere specified or included; . . . : Other handtools (including glass cutters) and parts thereof: Other: Crowbars, track tools and wedges, and parts thereof…Crowbars.” The column one, general rate of duty at the time of entry was Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
You are instructed to GRANT 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. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division