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HQ 956882


October 6, 1994

CLA-2 CO:R:C:M 956882 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.90

Mr. Robert Slomovitz
Chief, National Import Specialist Machinery Branch U.S. Customs Service
6 World Trade Center
Room 400A
New York, New York 10048

RE: Double Difference; overhead exhaust hose reels; 8428.90.00; other lifting, handling, loading or unloading machinery; EN 84.28; EN 84.79; Note 7, Chapter 84

Dear Mr. Slomovitz:

This is in response to your memorandum of August 9, 1994 (CLA- 2-84:S:N:N1:103), pertaining to the double difference on electronic Customs Form 6431 (entry number 231-19033688) concerning the tariff classification of overhead exhaust hose reels under the Harmonized Tariff Schedule of the United States (HTSUS). The information associated with this entry was forwarded to this office for a response.

FACTS:

The spring-loaded and manually operated overhead exhaust hose reels are used for the removal of exhaust fumes in welding shops, automotive repair facilities, etc. The exhaust hose reels are usually suspended from ceilings to support, dispense and retract the hoses which are connected to them. As imported, they do not have attached rubber hoses or fans. Although after importation, fans are frequently mounted to facilitate the removal of fumes in the work place. The importer entered the exhaust hose reels under subheading 8414.90.10, HTSUS, which provides for "Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; parts thereof...Parts...Of fans (including blowers) and ventilating or recycling hoods...."

Customs personnel in Detroit, Michigan, are of the opinion that the merchandise under consideration is more properly classified under subheading 8428.90.00, HTSUS, which provides for "Other lifting, handling, loading or unloading machinery (for example, elevators, escalators, conveyors, teleferics)...Other machinery...." This classification is based on the opinion that the exhaust hose reels perform a "handling" function similar to that of hoists, tool balances and other materials handling machinery which are used to support, lower and raise other articles.

The concerned National Import Specialist (NIS) in New York believes that the merchandise in question is properly classified under subheading 8479.89.90, HTSUS, which provides for "Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter...Other machines and mechanical appliances... Other...Other...." The NIS states that the primary function of the subject exhaust hose reels is not to load, unload or handle a hose, but rather to store it neatly. Additionally, the NIS notes that Explanatory Note (EN) 84.79 of the Harmonized Commodity Description and Coding System states that coiling machines which wind flexible cable or tubes are classified in heading 8479, HTSUS.

ISSUE:

Are the overhead exhaust hose reels classified under subheading 8428.90.00, HTSUS, as other lifting, handling, loading or unloading machinery, or under subheading 8479.89.90, HTSUS, as other machines and mechanical appliances having individual functions, not specified or included elsewhere?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System ENs may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 84.28 (pgs. 1197-1200) states that:

...this heading covers a wide range of machinery for the mechanical handling of materials, goods, etc. (lifting, conveying, loading, unloading, etc.). They remain here even if specialised for a particular industry, for agriculture, metallurgy, etc....

The heading covers lifting or handling machines usually based on pulley, winch or jacking systems, and often including large proportions of static structural steelwork, etc....

The exemplars in EN 84.28 include lifting gins, well drilling derricks, tephers, teleferics, funiculars, skip hoists, wagon tippers, elevators, conveyors, roller supports, cable operated hauling or towing machines, wagon pushers, wagon traversers, mechanical loaders, industrial robots, mechanical ladders, dollies, platforms, etc.

In its condition as imported, the overhead exhaust hose reels are not lifting, loading or unloading machinery, nor do they "handle" materials or goods. The main purpose of the overhead exhaust hose reels is for storage of the continuous length of hose by coiling it around the reel/drum. This prevents the hose from becoming tangled and keeps the hose from being a safety hazard. Additionally, the overhead exhaust hose reels are not similar to the types of lifting, handling, loading or unloading machinery listed as exemplars in EN 84.28.

EN 84.79 (pgs. 1313-1319) states that heading 8479, HTSUS, is restricted to machinery having individual functions, which:

(a) Is not excluded from this Chapter by the operation of any Section or Chapter Note. and (b) Is not covered more specifically by a heading in any other Chapter of the Nomenclature. and (c) Cannot be classified in any other particular heading of this Chapter since:
(i) No other heading covers it by reference to its method of functioning, description or type. and (ii) No other heading covers it by reference to its use or to the industry in which it is employed. or (iii)It could fall equally well into two (or more) other such headings (general purpose machines).

The overhead exhaust hose reels are not excluded from classification within Chapter 84, HTSUS, pursuant to Section XVI and Chapter 84, HTSUS, notes and, as stated previously, they are not more specifically covered by another heading in the HTSUS. Additionally, the overhead exhaust hose reels cannot be classified in any other heading of Chapter 84, HTSUS, because no other heading covers it by reference to its function, description or type, nor by reference to its use or to the industry in which it is employed.

Furthermore, EN 84.79 states that "[t]he many and varies machines covered by this heading include inter alia:...

(III) MISCELLANEOUS MACHINERY

This group includes:...
(18) Coiling machines for flexible cable or tubes (e.g., for textile or metal cables or ropes, electric cables, lead pipes).

We are of the opinion that the purpose of the coiling machines in EN 84.79, as well as their method of operation is substantially similar to the overhead exhaust hose reels at issue. Additionally, Note 7, Chapter 84, HTSUS, states that:

Subject to note 2 to this chapter and note 3 to section XVI, a machine the principal purpose of which is not described in any heading or for which no one purpose is the principal purpose is, unless the context otherwise requires, to be classified in heading 8479....

Based on Note 7, Chapter 84, HTSUS, and EN 84.79, the overhead exhaust hose reels are classified under subheading 8479.89.90, HTSUS.

HOLDING:

The overhead exhaust hose reels are classified under subheading 8479.89.90, HTSUS, as other machines and mechanical appliances having individual functions, not specified or included elsewhere.

Sincerely,

John Durant, Director

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