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HQ 952881


February 11, 1993

CLA-2 CO:R:C:M 952881 EJD

CATEGORY: CLASSIFICATION

TARIFF NO: 8516.79.00

District Director
U.S. Customs Service
P.O. Box 789
Great Falls, Montana 59401

RE: Protest No. 3307-92-100034; Heat Gun; subheading 8516.32.00; EN 85.16; heading 8516; HQ 950627

Dear Sir:

This is in response to the Application for Further Review of Protest No. 3307-92-100034, dated September 22, 1992, which pertains to the tariff classification of a heat gun under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination.

FACTS:

The merchandise under consideration is a heat gun of lightweight, sturdy, chromed metal construction. It has a removable heat bar which concentrates air flow. The heat gun has a hot/cool control and an adjustable heat control baffle. It can be used for applying model coverings, to aid in drying of glues and resins, to heat-shrink tubing, and for fabric or plastic shrink coverings.

The merchandise comes in a cardboard box stating the contents to be a "Heat Gun" from "Royal Quality Products". The heat gun's box contains a WARNING label, which states:

Royal's Heat Gun is not a toy! Keep away from children and use extreme caution whenever using. The heat generated by the gun is capable of causing severe injury or burns to the user or anyone coming in contact with the operating product. There is also a CAUTION label on the cardboard box which states:

NOZZLE HEAT
EXCEEDS 400 DEGREE F.
DO NOT USE AS
HAIR DRYER.

The protestant contends that the merchandise is classifiable under subheading 8516.32.00, HTSUS, as other electrothermic hairdressing apparatus. The entry was liquidated under subheading 8516.79.00, HTSUS, as other electrothermic appliances.

ISSUE:

Is the heat gun classifiable as other hairdressing apparatus under subheading 8516.32.00, HTSUS, or as other electrothermic appliances under subheading 8516.79.00, HTSUS?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs 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 notes should always be consulted. See T.D. 89-80.

The protestant maintains that this merchandise can not be classified under subheading 8516.79.00, HTSUS, as other electrothermic appliances used for domestic purposes, because the heat gun is not used in the household. His claim for classification under subheading 8516.32.00, HTSUS, is based upon its similarity to a hairdressing device.

The protestant argues that EN 85.16 provides, at page 1359, that:

* * * This group excludes:

(c) Counter-type coffee percolators, tea or milk urns, saute pans and chip pans used,for example, in chip shops and other thermo-electric appliances which are not normally used in the household (heading 84.19, etc.). (Emphasis in the original.)

He further argues that the heat gun has essential characteristics exactly the same as hair dressing apparatus, citing EN 85.15, at page 1358, which states, in pertinent part:

(C) ELECTRO-THERMIC HAIR-DRESSING APPARATUS AND HAND DRYERS

These include:

(1) Hair dryers, including drying hoods and those with a pistol grip and built-in fan.

The protestant's arguments are not convincing. The subject heat gun will be used in the home by hobbyists and craftsmen for model making. Even though the device has the superficial appearance of a hair dryer, it cannot be used as a hair dryer. If one were to disregard the caution and the warning labels on the package and use this merchandise as a hair dryer, serious injury or burns would result. Thus, the device does not meet the terms of subheading 8516.32.00, HTSUS, and it cannot be classified there.

In Headquarters Ruling Letter (HQ) 950627, dated March 30, 1992, Customs dealt with the classification of a glue gun. We determined that the glue gun was classified under subheading 8516.79.00, HTSUS. We found that the glue gun was an electrothermic appliance that is normally used in the household for making decorations, and fixing toys, models, furniture and woodworking. It is our position that the heat gun should be classified the same way for the same reasons.

In our opinion, based upon the information provided, the subject heat gun is properly classified under subheading 8516.79.00, HTSUS, as:

Electric instantaneous or storage water heaters and immersion heaters . . . electrothermic hair-dressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers . . . other electrothermic appliances of a kind used for domestic purposes; electric heating resistors . . . parts thereof . . . [o]ther electrothermic appliances . . . [o]ther,
with a rate of duty of 5.3 percent ad valorem.

HOLDING:

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice on the protest.

Sincerely,

John Durant, Director

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