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HQ 963673




August 10, 2000

CLA-2 RR:CR:GC 963673 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8467.89.50

Mr. Robert C. Watson, III
LO Ink Specialties
P.O. Box 220
Freeport, ME 04302-0220

RE: NY E87021 Revoked; Hand-held pneumatic, gas-powered hammer drill.

Dear Mr. Watson:

In response to your letter of September 3, 1999, the Director of Customs National Commodity Specialist Division, New York, issued you NY E87021 on September 14, 1999, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a “pneumatic powered hammer drill.” Your letter and documentation were forwarded to this office for reconsideration of the ruling.

We have reviewed NY E87021, and have determined that the classification set forth is in error. This ruling revokes NY E87021. We regret the delay in responding.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice was published on July 5, 2000, in the Customs Bulletin, Volume 34, Number 27, proposing to revoke NY E87021, dated September 14, 1999, and to revoke the tariff treatment pertaining to the tariff classification of gas engine powered pneumatic drills. No comments were received in response to this notice.

FACTS:

The merchandise consists of a rotary hammer drill (“pneumatic drill”), that incorporates a compressed air motor powered by a gas engine. The literature you provided, describes a “Model ER-382K G.P. 11/2” Rotary Hammer.” The pneumatic drill uses heavy-duty spline bits and accepts chipper, chisel and bull point hammer bits. The article has a D-type handle, safety clutch and free flight percussion hammer to absorb vibration and recoil. An auxiliary handle, depth gauge stop and steel carrying case are included. The pneumatic drill does not have an electric motor. The specifications you have provided describe the drive system as a pneumatic powered hammer mechanism and the engine type as an “air cooled, 2 cycle gasoline.”

The pneumatic drill head is powered by a “free floating piston, which rotates the bit.” You have stated that the pneumatic drill, “is used to drill holes in rock, asphalt and concrete,” to “chip and break pavement” and to “pound rebar into the ground.” In NY E87021, the pneumatic drill was determined to be classifiable under subheading 8508.10.00, HTSUS, which provides for “[e]lectromechanical tools for working in the hand, with self-contained electric motor; parts thereof: Drills of all kinds . . . Rotary:”

ISSUE:

Whether the pneumatic drill, is classifiable under subheading 8508.10.00, HTSUS, as an electro-pneumatic rotary and percussion hammer, under subheading 8467.11.50, HTSUS, as a hand-held tool, pneumatic, hydraulic or with self-contained nonelectric motor, and parts thereof, or under subheading 8467.89.50, HTSUS, as a hand-held tool, pneumatic, hydraulic or with self-contained nonelectric motor, and parts thereof . . . Other.”

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under General Rule of Interpretation (GRI) 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 98-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS headings under consideration are as follows:

8467 Tools for working in the hand, pneumatic, hydraulic or with self-contained nonelectric motor, and parts thereof:
Pneumatic:
8467.11 Rotary type (including combined rotary-percussion): 8467.11.10 Suitable for metal working..........

Other...............

Other tools:
Other:

Suitable for metal working

8467.89.50 Other...............................

8508 Electromechanical tools for working in the hand, with self-contained electric motor; parts thereof

8508.10.00 Drills of all kinds...........................

Heading 8508, HTSUS, provides for “[e]lectromechanical tools for working in the hand, with self-contained electric motor; parts thereof[.]” The subject article is a hand-held tool. It is specifically designed with a gas engine. It uses compressed air to operate. It is not an electromechanical tool. It does not have a self-contained electric motor. The pneumatic drill is not classifiable under heading 8508, HTSUS, because it does not meet the terms provided therein.

The specifications you have provided demonstrate that the article is, in fact, a pneumatic hammer drill powered by an air-cooled, 2-cycle gasoline engine. Heading 8467, HTSUS, provides for “[t]ools for working in the hand, pneumatic, hydraulic or with self-contained nonelectric motor, and parts thereof: Pneumatic[.]” The pneumatic drill is classifiable according to the terms of this heading.

EN 84.67, page 1394, states in pertinent part:

“This heading covers tools which incorporate a compressed air motor (or compressed air operated piston), an internal combustion motor or any other non- electric motor. . . .”

The pneumatic drill has no external source of compressed air. The “compressed air motor” is actually a cylinder with a piston inside it. Power is supplied to the cylinder and piston by a gas engine through a gear. When power is supplied, air in the cylinder is pressurized. This pressurization forces the piston forward to apply force activating whatever tool is being used. Compressed air is evacuated by valves permitting repetition of the process and causing the piston to move back and forth. This rapid back-and-forth movement causes a drill to rotate or a hammer to deliver blows.

Under heading 8467, HTSUS, we note that the subject article is prima facie classifiable under two subheadings: 8467.11.50 and 8467.89.50, HTSUS. Comparing the terms of these two subheadings, we find however, that each subheading describes part only of the components in this tool. Subheading 8467.11.50, HTSUS, describes the subject article’s pneumatic feature, while subheading 8467.89.50, HTSUS, prima facie provides for only the gas engine feature.

GRI 6 states in part, 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, by appropriate substitution of terms, to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable.

GRI 3(b) states that when goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: “[m]ixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to GRI 3(a), shall be classified as if they consisted of the material or component which gives them their essential character . . .” [emphasis added].

In defining “essential character” for purposes of GRI 3(b), the Court of International Trade has looked to the role of the constituent parts and materials in relation to the use of the good, and found that the component that performs the “indispensable function” of the article, imparts the “essential character” of the good. Mita Copystar America, Inc., v. United States, 966 F. Supp. 1254 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995).

In the instant case, the pneumatic component of the subject article is essential to its operation. However, absent the article’s gas engine the pneumatic component will not function. Thus, while each subheading, 8467.11.50 and 8467.89.50, describes an essential component of the article, neither includes both. Both the pneumatic component and the gas engine are indispensible to the drill’s ability to function. Where the “essential character” of the subject article cannot be determined from the terms provided under two competing subheadings by reference to GRI 3(a) or GRI 3(b), GRI 3(c) should be applied at GRI 6. Thus, at GRI 3(c), the pneumatic drill is classifiable under the “[sub]heading which occurs last in numerical order among those which equally merit consideration.” The pneumatic drill is, therefore, classifiable under subheading 8467.89.50, HTSUS.

HOLDING:

The pneumatic drill, is not provided for under subheading 8508.10.00, HTSUS, as an “[e]lectromechanical tool for working in the hand, with self-contained electric motor; parts thereof: Drills of all kinds . . . Other, including hammer drills.” The pneumatic drill is classifiable under subheading 8467.89.50, HTSUS, which provides for “[t]ools for working in the hand, pneumatic, hydraulic or with self-contained nonelectric motor, . . .Other tools, other, other.”

EFFECT ON OTHER RULINGS:

NY E87021, dated September 14, 1999, is hereby REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the customs bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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