CLA-2 RR:CR:GC 963639 AML
TARIFF No.: 8207.90.60
Mr. Herbert William Julich
Delmar International Inc.
147-55 175th Street
Jamaica, NY 11434
RE: Reconsideration of NY D83590; “needles” for use with pneumatic
scalers
Dear Mr. Julich:
This is in reference to New York Ruling Letter (NY) D83590, issued to you by the Director, Customs National Commodity Specialist Division, New York, on behalf of Trelawny™ Pneumatic Tools, on October 15, 1998, which classified “needles” for use with pneumatic scalers under subheading 8467.19.5090 of the Harmonized Tariff Schedule of the United States (HTSUS). Subheading 8467.19.5090, HTSUS, provides for tools for working in the hand, pneumatic hydraulic or with self contained non-electric motor, and parts thereof: other. We have reconsidered NY D83590 and now believe that the classification set forth is incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on April 18, 2001, in Vol. 35, No. 16 of the Customs Bulletin, proposing to revoke NY D83590 and to revoke the treatment pertaining to the “needles” for use with pneumatic scalers. No comments were received in response to this notice.
FACTS:
The articles were described in NY D83590 as follows:
The samples submitted are pneumatic needles used in hand operated pneumatic scalers.
Contrary to the description in NY D83590, the needles themselves are not pneumatic, nor can they be described as such. Rather, they are base metal articles that resemble nails and measure approximately 7 inches (18 mm) in length and approximately 1/8 inch (.4 mm) in width. The heads of the articles resemble those of finishing nails, and the ends of the samples provided resemble those of a flat head screwdriver in one instance and a “blank” (a metal dowel with the end neither worked nor finished) in the other.
The so-called “needles” are base metal articles are inserted into pneumatic scalers that are used for derusting, descaling and removing paint from surfaces.
ISSUE:
Whether the “needles” for use with pneumatic scalers are classifiable under subheading 8207.90.60, HTSUS, which provides for interchangeable tools for hand tools, whether or not power operated . . . other interchangeable tools, and parts thereof: other: other: other: not suitable for cutting metal, and parts thereof: for hand tools and parts thereof; or under subheading 8467.19.5090, HTSUS, which provides for tools for working in the hand, pneumatic, hydraulic or with self-contained non-electric motor, and parts thereof: pneumatic, other: other?
LAW and ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]”
The HTSUS provisions under consideration are as follows:
8207 Interchangeable tools for handtools, whether or not power-operated, or for machine-tools (for
example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching,
milling, turning or screwdriving), including dies for drawing or extruding metal, and rock drilling or earth boring tools; base metal parts thereof:
8207.90 Other interchangeable tools, and parts thereof:
Other:
Not suitable for cutting metal, and parts
thereof:
8207.90.60 For handtools, and parts thereof.
* * *
8467 Tools for working in the hand, pneumatic, hydraulic or with self-contained nonelectric motor,
and parts thereof:
Pneumatic:
8467.19 Other:
8467.19.50 Other:
8467.19.50.90 Other.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The base metal “needles” are designed for use with pneumatic scalers. As such, they are prima facie classifiable under heading 8207, HTSUS, as interchangeable tools for handtools, and under heading 8467, HTSUS, as parts of pneumatic tools for working in the hand.
Initially we must consider whether the articles are parts of general use. Section XV, Note 2, HTSUS, states, in pertinent part, that: the expression “parts of general use” means: (a) articles of heading 7307 (tube or pipe fittings), 7312 (stranded wire, ropes, cable, etc.), 7315 (chain), 7317 (nails, tacks, etc.) or 7318 (fasteners) and similar articles of other base metals. Although the articles resemble nails in appearance, that is where their similarity ends. The articles at issue are specifically intended to be used with the hand held pneumatic scalers. Thus, the needles are not parts of general use.
Note 1(o) to Section XVI, HTSUS (within which heading 8467 is found), provides, in pertinent part, that Section XVI does not cover interchangeable tools of heading 82.07. Thus, if the articles are classifiable under heading 8207, HTSUS, they cannot be classified under heading 8467.
The General ENs to Chapter 82 provide, in pertinent part, that:
This Chapter covers certain specific kinds of base metal articles, of the nature of tools, implements, cutlery, tableware, etc., which are excluded from the preceding Chapters of Section XV, and are not machinery or appliances of Section XVI (see below), nor instruments or apparatus proper to Chapter 90, nor articles of heading 96.03 or 96.04.
This Chapter includes:
* * *
(C) Interchangeable tools for hand tools, for machine-tools or for power-operated hand tools (heading 82.07), knives and blades for machines or mechanical appliances (heading 82.08) and plates, sticks, tips and the like, for tools (heading 82.09).
The ENs to heading 8207 provide, in pertinent part, that:
Whereas (apart from a few exceptions such as machine saw blades) the preceding headings of this Chapter apply in the main to hand tools ready for use
as they stand or after affixing handles, this heading covers an important group of tools which are unsuitable for use independently, but are designed to be fitted, as the case may be, into (emphasis in original):
(A) hand tools, whether or not power-operated (e.g., breast drills, braces and die-stocks),
(B) machine-tools, of headings 84.57 to 84.65, or of heading 84.79 by reason of
Note 7 to Chapter 84,
(C) tools of headings 84.67 and 85.08, for pressing, stamping, punching, tapping, threading, drilling, boring, reaming, broaching, milling, gear-cutting, turning, cutting, morticing or drawing, etc., metals, metal carbides, wood, stone, ebonite, certain plastics or other hard materials, or for screwdriving.
Although the term "tool" is not defined in the HTSUS or the ENs, it is presumed that Congress intended to apply its common and commercial meaning. Brookside Veneers, LTD v. United States, 847 F. 2d 789 (1988). To ascertain the common and commercial meaning of a term, dictionaries and other lexicographic authorities may be consulted. Austin Chem. Co. v. United States, 835 F. 2d 1423 (Fed. Cir. 1987). A “tool” is described as "[a] hand-held implement, as a hammer, saw, or drill, used in accomplishing work." Webster's II New Riverside University Dictionary, p. 1217 (1984).
The HTSUS, which went into effect January 1, 1989, is a relatively new tariff system with rules of interpretation and application somewhat different from the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS. As noted in House Conference Report No. 100-576, dated April 20, 1998, on the Omnibus Trade and Competitiveness Act of 1988 (P.L. 100-418), decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTSUS. Nevertheless, on a case-by-case basis, prior decisions should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS.
In T.G. Cullen, inc. v. United States, 69 Ct. Cust. 8, C.D. 4364 (1972), the Court addressed the classification of articles similar (if not identical) to those at issue. The Court, recounting the evidence before it, described the articles as “slender elongated article(s) (the shape of a nail), seven inches long, with a slightly oversized head as not to pass completely through the chamber of the tool holder, and a working end beveled on two sides to a straight edge that measures approximately two-sixteenths of an inch.” Id. at 11. Other evidence considered by the Court demonstrated that the articles were
used for “derusting, descaling and removing old paint surfaces.” Id.
In reaching its conclusion that the so-called “needles” for “air guns” are interchangeable tools, the Court enunciated the following rationale:
[I]n the tariff sense of the term “interchangeable tools”, the term “tool” has the same broad signification as the synonymous term “instruments” meaning any
implement or tool by which work is done. United States v. Bliss & Co. et al., 6 Ct. Cust Appls. 433, 440, T.D. 35980 (1915); Audel’s New Mechanical Dictionary (1960) . . . The record establishes that the needles are designed to be fitted to the air gun and cannot be used independently. The fact that the air gun will do its work more efficiently when the tool holder is fully loaded with a set of needles
does not derogate from the fact that “the working portion . . . is the needle, which is the part that * * * come[s] in contact with the surface * * *.” Id. at 13.
The pneumatic scalers with which the “needles” are used satisfy this description. They are pneumatic, hand-held implements used to accomplish the work of removing rust, paint and other substances that cover (i.e., old paint, varnish, etc.) or have accumulated (rust, pollutants, etc.) on a surface. The “needles” themselves, which are interchangeable and replaceable, are unsuitable for use independently, but are designed to be fitted into and used with the pneumatic scalers. Therefore, the articles are classifiable under heading 8207, HTSUS.
HOLDING:
The base metal “needles” for use with pneumatic scalers are classifiable under subheading 8207.90.60, HTSUS, which provides for interchangeable tools for hand tools, whether or not power operated . . . other interchangeable tools, and parts thereof: other: other: other: not suitable for cutting metal, and parts thereof: for hand tools and parts thereof.
EFFECT ON OTHER RULINGS:
NY D83590 is REVOKED. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division