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HQ 968028




MAY 11, 2006

CLA-2 RR:CTF:TCM 968028 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.90.9495

Port Director
U.S. Customs and Border Protection
P.O. Box 619050
7501 Esters Blvd., Suite 160
Irving, TX 75063

RE: Protest 5501-05-100224; Gas Canister for GX-100 Gas Fastening Tool

Dear Port Director:

This is our decision on Protest 5501-05-100224, filed by counsel on behalf of Hilti, Inc., against your classification of gas canisters for use with gas-driven nail guns under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

The goods were entered on July 27 and August 28, 2004, under a provision of heading 8467, HTSUS, as other parts of tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor. They were reclassified as other chemical products and preparations of the chemical or allied industries in heading 3824, HTSUS, and the entries liquidated under this provision on June 10 and July 15, 2005. This protest was timely filed on August 26, 2005.

FACTS:

The merchandise under protest is the Gas Canister GC 12 (“GC 12”) for use with the GX-100 Gas Fastening Tool (“GX-100”). The GX-100 is a hand-held, fully automatic, gas-driven tool designed for interior construction applications to drive nails into steel and concrete. The GC 12 is described in a material safety data sheet as an aerosol propellant consisting of dimethyl ether, propylene, isobutane, ethanol, liquefied propane and butane (the propane/butane mixture remains in the can and is not released).

According to counsel’s description, the tool is pressed down to actuate the canister which releases a pre-determined amount of gas into the firing chamber of the GX-100. Pulling the trigger causes batteries to generate a spark that ignites the gas. The resulting combustion propels a piston which drives the nail into the base material. The GC 12 is specially engineered to fit inside a specific tool and is the standard device for providing gas to the GX-100. The GC 12 is sold with the gas inside and is not designed for reuse.

The HTSUS provisions under consideration are as follows:
chemical products and preparations of the chemical or allied industries, not elsewhere specified or included:

Other:

Other:

Other:

Other:

3824.90.91 Other

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

Parts:

8467.99.01 Parts

8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]; parts thereof:

Parts:

8479.90.94 Other

ISSUE:

Whether the GC 12 qualifies as parts of tools of heading 8467.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs and Border Protection (or CBP, as appropriate) believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Counsel for the protestant maintains that the GX-100 is a tool for working in the hand, provided for in heading 8467 and that the GC 12 is a part principally used with the GX-100 and, therefore, qualifies for classification in subheading 8467.99.01, HTSUS. Counsel makes the following arguments in support of this classification. The 84.67 EN describes tools for working in the hand which incorporate a compressed air operated piston. Therefore, the heading appears broad enough to cover hand tools that incorporate pistons driven by internal combustion where the energy caused by the combustion is converted into the mechanical force of the piston. The GC 12 is an integral, constituent component part of the GX-100 without which the hand tool cannot function as such. As a part solely or principally used with the GX-100, the GC 12 is classifiable in subheading 8467.99.01, HTSUS, pursuant to Section XVI, Note 2(b), HTSUS.

Finally, counsel cites Brother International Corp. v. United States, 248 F. Supp. 2d 1224 (CIT 2002), which classified printing cartridges, merchandise substantially similar to the GC 12 here, as parts of facsimile machines, citing the authority of Section XVI, Note 2(b), HTSUS. Also, HQ 966611, dated January 7, 2004, classified a pressurized canister of rain repellent for use in a spray system for aircraft windshields in subheading 8424.90.90, HTSUS, as parts of spraying apparatus, again under the authority of Section XVI, Note 2(b), HTSUS.

CBP has reviewed and analyzed the cases cited by counsel and agrees that the GC 12 is a part for tariff purposes. Also noted in this regard is Bruce Duncan Co., Inc. a/c Adjust-A-Lite Butane Corp. v. United States, 63 Cust. Ct. 412, C.C. 3927 (1969), which classified cartridges of butane lighter fuel as parts of cigarette lighters under the

HTSUS’ predecessor tariff code, the Tariff Schedules of the United States, and HQ 964845, dated January 4, 2002, which classified sputtering targets, a consumable consisting of material to be deposited on a substrate by electron beam sputtering machines, as parts of such machines in subheading 8543.90, HTSUS.

However, we do not agree that heading 8467 properly describes the GX-100 Gas Fastening Tool. The GX-100 does not contain a self-contained electric or nonelectric motor. However, the 84.67 ENs describe, in particular, hand tools incorporating a compressed air motor or a piston operated by compressed air. The GX-100 operates by the process of combustion which involves igniting a compressed charge to result in propulsive power generated by the expansive force of the resulting gases. Notwithstanding counsel’s assertion that the energy caused by the combustion is converted into the mechanical force of the piston, this is not functionally equivalent to moving the piston by compressed air, which is a pneumatic phenomenon. We also note protestant’s website advertises the GX-100 as a gas powered system for driving fasteners into concrete or steel. See www.us.hilti.com. As the GX-100 is not a tool where the piston is moved by compressed air, it cannot be considered “pneumatic.” The GC 12, therefore, cannot be a part classifiable in heading 8467.

Heading 8479 provides for machines and mechanical appliances having individual functions, not specified or included elsewhere in [chapter 84]. The 84.79 ENs limit this heading to machinery having individual functions that is not excluded from the chapter by any Section or Chapter note nor covered more specifically by another heading in the HTSUS. The ENs regard a mechanical device, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance as having an individual function. The GX-100 meets all the requirements for inclusion under heading 8479. Therefore, the GC 12 is classifiable as a part thereof.

HOLDING:

Under the authority of GRI 1, and Section XVI, Note 2(b), the Gas Canister GC 12 is provided for in heading 8479. It is classifiable in subheading 8479.90.9495, HTSUSA. Since reclassification of the merchandise under this provision will result in the same rate as claimed, the protest should be ALLOWED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 of the
decision. Sixty days from the date of the 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 methods of public distribution.

Sincerely,
for Gail A. Hamill

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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