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HQ 089163


September 17, 1991

CLA-2 CO:R:C:M 089163 AJS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8413.20.00

District Director
U.S. Customs Service
909 First Avenue
Room 2039
Seattle, WA 98174

RE: Protest Number 3001-90-101439; auto body repair tool kits; Subheading 8467.89.50; Subheading 8413.50.00; Heading 8467; EN 84.67; H. Conf. Rep. No. 576; GRI 3; GRI 3(b) EN (X)(a); Heading 8413; Heading 8412; Heading 4009; Heading 7326; sets; GRI 3(b) EN character.

Dear District Director:

Protest for further review number 3001-90-101439 dated December 26, 1990, was filed against the classification of 10 ton and 4 ton auto body repair tool kits within subheading 8413.50.00, Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise under protest is the 10 ton and 4 ton auto body repair tool kits. These kits consists of various hydraulic equipment and attachments which are used for straightening out damaged automobile frames and body parts. They contain a manually operated hydraulic piston pump, connected to a hydraulic cylinder (ram) by a six foot long pressure hose; various size extension tubes for mounting on the ram; and a number of work attachments (spreader, flat base, ram toe, combination head, rubber head, etc.). These items are imported together in a metal tool chest. The main difference between the two kits is the size and strength of the pump, ram and extension tubes.

ISSUE:

Whether the subject kits are properly classifiable within subheading 8467.89.50, HTSUSA, which provides for other tools for working in the hand with a self-contained non-electric motor; or
classifiable within subheading 8413.20.00, HTSUSA, which provides for "[h]and pumps, other than those of subheading 8413.11 or 8413.19."; or classifiable within subheading 8413.50.00, HTSUSA, which provides for "[o]ther reciprocating positive displacement pumps."

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes, and unless otherwise required, according to the remaining GRI's taken in order.

Heading 8467, HTSUSA, provides for "[t]ools for working in the hand, pneumatic or with self-contained nonelectric motor, and parts thereof." The protestant claims that the subject kits satisfy the terms of this heading. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) state that heading 84.67 covers tools which incorporate a non-electric motor. ENs 84.67, p. 1289 (1991). The subject kits consist of a hydraulic ram onto which various extension tubes and work tools may be attached. This ram is connected to a manually operated hydraulic piston pump by a pressure hose. In addition, the kits contain a hydraulic spreader which is interchangeable with the ram. This type of merchandise is not merely a tool for working in the hand which operates by means of a non-electric motor. Instead, it is a kit composed of a set of tools which are connected to and operated by means of a hydraulic motor, pump and spreader. Accordingly, the subject kits do not satisfy the terms of this heading and cannot be classified therein by the application of GRI 1.

This conclusion is supported by the ENs to heading 84.67. They state that this heading excludes sets consisting of a tool holder with one or more tools, and a spark-ignition internal combustion piston engine with a flexible shaft ("tool holder sets"). The subject kits are similar to this type of merchandise. They are a set consisting of a tool holding device, with various extension tubes and tools which can be attached to the ram. While the kit does not possess an internal combustion engine, it possesses a ram which is a hydraulic linear acting cylinder (i.e., non-electric linear motor). While the ENs are not dispositive, they provide a commentary on the scope of each heading and offer guidance for interpretation of the HTSUSA. H. Conf. Rep. No. 576, 100th Cong., 2d Sess., p. 549, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS p. 1582. Accordingly, we find the above ENs instructive for determining that the subject kits do not satisfy the terms of heading 8467, HTSUSA.

The ENs to heading 84.67 state that the above tool holder sets are classified in heading 84.66, the spark-ignition internal combustion engine in heading 84.07, and the tools in their own appropriate headings. ENs 84.67. This language addresses the classification of a very specific set of articles. The subject kits do not satisfy this specific description. The kits do not have the type of spark-ignition internal combustion engine described in the ENs. Furthermore, while the kits possess a tool holding device, it is not the type of tool holder described in heading 84.66. Therefore, the kits are not properly classifiable in the manner described in the ENs to heading 84.67.

GRI 3 provides for the classification of "goods put up in sets for retail sale" ("sets"). These consist of at least two different articles which are, prima facie, classifiable in different headings. GRI 3(b), ENs (X)(a). The subject kits satisfy this description. They each consist of a hydraulic pump classifiable within heading 8413, HTSUSA, a hydraulic cylinder classifiable within heading 8412, HTSUSA, hydraulic hose class- ifiable within heading 4009, HTSUSA, and a metal tool box classifiable within heading 7326, HTSUSA.

Sets must also consist of articles put up together to meet a particular need or carry out a specific activity. GRI 3(b), ENs (X)(b). The subject kits satisfy this requirement. They consist of articles put up together to carry out the specific activity of straightening out damaged automobile frames and body parts.

Sets must lastly be put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards). GRI 3(b), ENs (X)(c). The subject kits satisfy this requirement. The submitted literature indicates that the kits are put up in sets and sold in that manner directly to the user. Accordingly, the subject kits satisfy all of the requirements of a set and are classifiable as such.

GRI 3(a) states that the heading which provides the most specific description of a set shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the items in a set, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. The subject kits satisfy this description. As stated previously, at least four headings refer to part of the items in the kits. Accordingly, the kits are not classifiable by the application of GRI 3(a).

Sets which cannot be classified by reference to GRI 3(a), shall be classified as if they consisted of the component which gives them their essential character. GRI 3(b). The factor
which determines essential character will vary as between different kinds of goods. GRI 3(b), ENs (VIII). It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. GRI 3(b), ENs (VIII). In this case, the hydraulic pump is the component which gives the sets their essential character. It is the only component which must be used at all times. The extension tubes and work attachments are interchangeable and used on an as needed basis, and the ram is interchangeable with the hydraulic spreader. In addition, the pump is also the most expensive item in the kits. Accordingly, the subject kits are classifiable as if they consisted solely of the hydraulic pumps.

Heading 8413, HTSUSA, provides for pumps for liquids. The subject pump is a manually operated hydraulic piston pump. This type of pump satisfies the terms of this heading. More specifi- cally, the pump is provided for within subheading 8413.20.00, HTSUSA, as a hand pump. Therefore, the subject kits are classifiable within this subheading based upon the application of GRI 3(b).

The subject kits were liquidated within subheading 8413.50.00, HTSUSA, which provides for "other" reciprocating positive displacement pumps. This classification was also based on the application of a GRI 3(b) set analysis. However, the subject kits satisfy the terms of subheading 8413.20.00, HTSUSA, which specifically provides for hand pumps. Therefore, resort to the "other" pump provision for classification within subheading 8413.50.00, HTSUSA, is not required in this instance.

HOLDING:

The 10 ton and 4 ton auto body repair tool kits are properly classifiable within subheading 8413.20.00, HTSUSA, which provides for hand pumps, currently dutiable at the General Column 1 rate of 3 percent ad valorem. Since the rate of duty under the classification indicated above is the same as the liquidated rate, you should deny the protest in full. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division?

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