Tool Companies Oppose CBP Proposal to Limit Court Decisions on Wrench Definition

CBP needs to provide more information about the intended reach of the agency's proposal to limit Court of International Trade and U.S. Court of Appeals for the Federal Circuit rulings involving locking pliers (see 1911190036), two tool companies said in comments filed in opposition to the proposal. The comments, submitted in December by lawyers for the Milwaukee Electric Tool Corporation and the Apex Tool Group, were provided by CBP in response to a Freedom of Information Act request. Both companies said they filed protests with CBP on similar merchandise. The comments were due to CBP by Dec. 20.

CBP's proposal stems from a CAFC ruling last year (see 1904100037) and a pair of 2017 CIT rulings (see 1704130035 and 1709210048) that involved Irwin locking pliers. Milwaukee, which is represented by Drinker Biddle, said it “is concerned that CBP's proposed narrow application of the Irwin case will lead to unnecessary litigation and fails to provide clear definition of substantially identical products.” The agency ought to “provide clear guidance on the definition it intends to apply to classify similar products, notwithstanding the clear definitions provided by the CIT and CAFC,” it said. That should include confirmation that locking pliers, “as that term is commercially recognized, are appropriately classified under HTSUS heading 8203.”

Apex, which is represented by Barnes Richardson, raised some similar issues. “Apex disagrees with the proposed limitation as the Court decisions [warrant] acceptance by CBP as setting the correct classification for the merchandise involved and substantially similar merchandise,” it said. The “intended scope” of the proposal is somewhat unclear and deserves clarification, the company said. If CBP wants to broadly apply the CIT and CAFC definition of pliers “to all products, including locking pliers,” the agency should also approve the Apex protests that involve the classification of locking pliers, it said.

But, “to the extent CBP may be proposing a broader limitation,” it “should abandon the proposal entirely or restrict it,” Apex said. “A wholesale limitation of the two federal court decisions in Irwin is a wasteful exercise of administrative effort.” Limiting the application of the decisions to “merchandise specifically before the Court and materially identical products, CBP is forcing importers of similar products into duplicative litigation over the” definitions of such tools, Apex said.

The proposal would also give Irwin products an unfair advantage because only Irwin's pliers “would receive the economically favorable treatment of under the tariff heading 8203,” it said. This would also incentivize importers to further litigate the issue “in order to achieve duty savings not available to their competitors,” it said. CBP should either “fully abandon this proposal or specifically limit it to note that CBP will continue to classify merchandise other than locking pliers as wrenches provided it has a single handle and a means of engaging the work piece without applying compressive force to grip the item,” Apex said.

Email ITTNews@warren-news.com for a copy of the comments.