CLA-2 RR:CTF:TCM H017695 GC
U.S. Customs and Border Protection
Newark/New York Region
1100 Raymond Boulevard, Suite 402
Newark, New Jersey 07102
Attn: Protest and Control
RE: Application for Further Review of Protest No. 4601-07-101665; 19 C.F.R. §174.24(b); Tariff classification of a certain drain cleaning hand tool.
Dear Port Director:
The following is our decision regarding the Application for Further Review of Protest No. 4601-07-101665, timely filed on behalf of the importer, All Shore Industries, Inc. (All Shore) against classification of an incomplete drain cleaning hand tool under the Harmonized Tariff Schedule of the United States (HTSUS).
This protest pertains to two entries, which cover an unfinished hand operated power tool, imported by All Shore, designed for use as a drain cleaning product. When completed, the product is identified as the BC100 Deluxe.
The BC100 Deluxe is described as a hand operated drill that has been redesigned electrically and mechanically to be suitable for use in clearing and cleaning drains. Like a common hand drill, the BC100 Deluxe features an electric motor encased in plastic. Instead of drill bits, a long metal cable-like device called a “snake” is attached to the BC100 Deluxe. This “snake” is the product’s only attachment because the BC100 Deluxe is not equipped with a “common chuck,” which allows drills to integrate interchangeable drill bits and screwdriver heads. The tool also differs from common drills in that its electric motor operates at a slower speed (0-555 RPM) to ensure the safety of the user, but it is designed to develop greater torque than a common drill in order to accomplish its function as a drain cleaner.
A sample of the imported product was not provided with your request for further review. However, the description and photographs provided by protestant indicate that the imported item is characterized by the above description with the exception that the “snake” attachment is not included at importation. The subject merchandise was invoiced as “motors for drain cleaning equipment, (drill type)”. All Shore entered the merchandise under subheading 8479.90.9495, HTSUSA (2006), which provides for: “[m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter: [p]arts: [o]ther… [o]ther: [o]ther.”
At liquidation, Customs and Border Protection (CBP) classified the entries in two subheadings under heading 8501, HTSUS, which provides for electric motors and generators. In its protest, All Shore now contends that the merchandise is properly classifiable as parts of tools for working in the hand with self contained electric or non-electric motor under subheading 8467.99.0190, HTSUSA (2006). In the alternative, All Shore suggests subheading 8467.29.0090, HTSUSA (2006), as unfinished or incomplete power tools.
Does the unfinished merchandise qualify as a tool for working in the hand containing an electric motor, or is it merely an electric motor?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on July 17, 2007, within 180 days of liquidation of the entry on January 19, 2007, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest No. 4601-07-101665 was properly accorded to protestant pursuant to 19 C.F.R. §174.24. In accordance with Section 174.24(b), the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.
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 are as follows:
8467 Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or non-electric motor, and parts thereof:
* * *
With self-contained electric motor:
* * *
* * *
* * *
* * *
* * *
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
* * *
* * *
* * *
* * *
8501 Electric motors and generators (excluding generating sets):
* * *
8501.20 Universal AC/DC motors of an output exceeding 37.5 W:
* * *
8501.20.4000 Exceeding 74.6 W but not exceeding 735 W…
* * *
Other DC motors; DC generators:
* * *
8501.34 Of an output exceeding 375 kW:
GRI 2(a) states, in part, that incomplete or unfinished articles shall be classified as if they were complete or finished, provided the incomplete or unfinished article has the essential character of the complete or finished article. Thus, if the imported merchandise has the essential character of the aforementioned BC100 Deluxe, then it is properly classified in the same HTSUS heading as if it were the completed article. However, if the subject merchandise does not have the essential character of the finished article, then it is merely an electric motor and should be classified as such.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to GRI 2(a) notes that the first part of GRI 2(a), which is germane to this particular case, “…extends the scope of any heading which refers to a particular article to cover not only the complete article, but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article.” (Emphasis in original). The term “essential character,” in the context of applying GRI 2(a), means the attribute that serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the good; the aggregate of distinctive component parts that establishes the identity of an article as what it is, its very essence. See HQ 967975, dated March 24, 2006.
Accordingly, the principal issue in this is case is whether the imported merchandise are essentially electric motors of heading 8501, HTSUS, or hand tools with self-contained electric motors of heading 8467, HTSUS. EN 85.01 states, in pertinent part, that “[e]lectric motors are machines for transforming electric energy into mechanical power”. In HQ 950834, dated March 6, 1992, CBP has held that “[the ENs] and rulings interpreting Heading 8501, HTSUS, make it clear that electric motors equipped with additional components, remain classifiable in this heading, even if those components are ‘quite substantial.’” Indeed, an electric motor is classifiable in heading 8501, HTSUS, even when imported with additional components (other than those listed in EN 85.01) if the additional components: complement the function of the motor; are devices with which motors are commonly equipped; or serve merely to transmit the power the motors produce. Id.
The merchandise here features a double insulated electric motor encased in housing similar to that of a power drill. Furthermore, the motor, within this design structure, is only able to generate the speed and torque necessary to function within the specifications of the BC100 Deluxe. The plastic housing surrounding the electric motor also limits the ability of the product to be used only with the “snake” attachment, which is to be connected after importation. The casing around the motor does not merely complement the motor’s function, nor is it considered a device with which motors are commonly equipped. The housing does indeed serve to transmit the power that the motor produces to the “snake” attachment. However, the housing also harnesses the motor’s power to reduce the rotation speed of the attachment while increasing the torque.
As previously mentioned, the BC100 Deluxe is shaped like a power drill tool for working in the hand. If a power drill were imported without the drill bits, it would not be classified as an electric motor of heading 8501, HTSUS, as the plastic-encased motor has the essential character of the finished power drill. This is a sound analogy for this particular case, as the subject merchandise is an unfinished tool held in the hand by the housing. The subject merchandise is advanced beyond a mere electric motor of heading 8501, HTSUS, as it possesses the essential character of a hand tool of heading 8467, HTSUS, by application of GRI 2(a).
By application of GRI 1 and GRI 2(a), the subject merchandise is classified in heading 8467, HTSUS. Specifically, it is classifiable under subheading 8467.29.0090, HTSUS, which provides for: “[t]ools for working in the hand, pneumatic, hydraulic or with self-contained electric or non-electric motor, and parts thereof: [o]ther: [o]ther.” The column one, general rate of duty is free.
Since re-classification of the merchandise as indicated above will result in the same rate of duty as claimed you are instructed to allow the protest in full. Thus, the protest should be GRANTED. 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision 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.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division