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HQ 966790




February 4, 2004

CLA-2 RR:CR:GC 966790 RSD

CATEGORY: CLASSIFICATION

TARIFF NO. 8459.29.00

Port Director
Customs and Border Protection
610 S. Canal Street
Room 306
Chicago, Illinois 60607

RE: Protest 3901-03-101393; Magnetic drilling machines

Dear Port Director:

This is our decision on Protest 3901-03-101393, filed by Menlo World Trade Services, on behalf Universal Drilling and Cutting on July 25, 2003, against your classification of portable magnetic drilling machines under the Harmonized Tariff Schedule of United States (HTSUS). The entry under protest was liquidated on June 13, 2003. This protest was timely filed on July 25, 2003.

FACTS:

The subject merchandise is portable magnetic drilling machines. Universal Drilling & Cutting of Lombard, Illinois imports the drilling machines from England. The invoices contained in the protest file indicate that Universal Drilling & Cuttings imported three different models of portable magnetic drills, E40, BD35 and S60/32. All drill models have magnetic bases that enable them to be clamped to a workpiece. The units feature arbor support and a solid state control panel. These machines use manufacturing and design technology that provide hole cutting solutions for a wide arrange of industries, including construction, steel fabrication, oil and gas, mining and tunneling, and shipyards. Other uses for the portable drilling machines include: offshore oil/gas work, structural steelwork, automotive and truck applications, highway and railroad bridgework, petrochemical plant work, welding, railroads, machinery installation, and underwater drilling. The E40 and S60/32 drilling machines weigh 40 pounds, while the BD 35 drilling machines weigh 28 pounds.

ISSUE:

Whether the portable magnetic drilling machines are classified in heading 8467, HTSUS, as tools for working in the hand with self-contained electric motor or in heading 8459, HTSUS, as machine tools for drilling by removing metal.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. Customs believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

8459 Machine tools (including way-type unit head machines) for drilling, boring, milling, threading or tapping by removing metal, other than lathes (including turning centers) of heading 8458:

Other drilling machines:

8459.29.00 Other.

8466 Parts and accessories suitable for use solely or principally with the machines of headings 8456 or 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine tools; tool holders for any type of tool for working in the hand:

Other:

8466.92 For machines of heading 8465:

8466.92.50 Other.

8467 Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor, and parts thereof:

With self-contained electric motor:

8467.21.00 Drills of all kinds.

Customs liquidated the subject entry in subheading 8466.92.50, HTSUS as parts of machine tools of heading 8465. However, Customs concedes that this classification was incorrect because a complete machine was imported rather than parts for a drilling machine. Therefore, the portable magnetic drilling machines under consideration cannot be classified in subheading 8466.92.50, HTSUS.

EN 84.59 states that:

This heading covers machine-tools for drilling, boring, milling, threading or tapping by removing metal, other than lathes (including turning centres) of heading 84.58.

In general machine-tools are power-driven but similar machines, worked by hand or pedal, are also covered by this heading. These latter types can be distinguished from the hand tools of heading 82.05 and from the tools for working in the hand of heading 84.67, by the fact that they are usually designed to be mounted on the floor, on a bench, on a wall or on another machine, and are thus usually provided with a base plate, mounting frame, stand etc.

This heading covers:

(1) Drilling machines. These are used for cutting cylindrical holes, including recessed holes, in articles by means of a rotating tool called a drill or bit. The article remains immobile during the working of the tool which is rotated (cutting action) or fed into the work (feed action). This heading also covers drilling machines which employ a fixed tool to work a rotating article, or like machines using both processes. [All emphasis in original.]

EN 84.67 states:

This heading covers tools which incorporate an electric motor, a compressed air motor (or compressed air operated piston), an internal combustion motor or any other motor (e.g. small hydraulic turbine); the compressed air motor is generally operated by an external source of compressed air, and in the case of the internal combustion motor the ignition batteries are sometimes separate. In pneumatic tools the action of the compressed air is sometimes supplemented by hydraulic connections.

The heading covers such tools only if for working in the hand. The expression “tools for working in the hand” means tools designed to be held in the hand during use, and also heavier tools (such as earth rammers) which are portable, that is, which can be lifted and moved by hand by the user, in particular while work is in progress, and which are also designed to be controlled and directed by hand during operation. To obviate the fatigue of taking their full weight during operation they may be used with auxiliary supporting devices (e.g. tripods, jacklegs, overhead lifting tackle).

However, certain tools for working in the hand of this heading have fittings permitting them to be temporarily fixed to a support. They remain classified here, together with the support if it is presented therewith, provided the tools are essentially “for working in the hand” as defined above.

The heading excludes tools which, because of their weight, size, etc., obviously cannot be used in the hand as described above. It also excludes tools (whether or not portable) fitted with a base plate or other device for fixing to the wall, bench, floor, etc., and those with provision for running on rails (e.g., machines for slotting or drilling railway sleepers). [All emphasis in original.]

The information available indicates that the drilling machines are not held in the hand during their use. The drilling machines are portable in that they can be moved by hand to different locations. However, the drilling machines are not designed for users to lift them and move them with their hands while they are being operated. Instead, during their operation, the drilling machines will remain stationary. When the drilling machines are operated, the magnetic base is used to secure the machines. Consequently, because the drilling machines are not held in the hand when they are used, we conclude that they are outside the scope of heading 8467, HTSUS.

In NY 871096, dated February 7, 1992, Customs previously ruled on three portable magnetic base drill presses used in the construction industry. Customs ruled that the applicable subheading for the drilling presses was subheading 8459.29.00, HTSUS. The subject drilling machines are substantially similar to the goods of NY 871096. Accordingly, in this case, based on the totality of information submitted, we find that the portable magnetic drills are classified in subheading 8459.29.00, HTSUS.

HOLDING:

The portable drilling machines are classified in subheading: 8459.29.00, HTSUS as: “Machine tools (including way-type unit head machines) for drilling, boring, milling, threading or tapping by removing metal, other than lathes (including turning centers) of heading 8458: Other drilling machines: Other.”

Since the rate of duty for the applicable classification is less than the rate for the liquidated classification, but more than for the claimed classification, you are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 the decision. No later than sixty (60) days from the date of this decision, the Office of Regulations and Rulings 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 means of public distribution.

Sincerely,

Myles B. Harmon,
Director, Commercial Rulings Division

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