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HQ 962966




May 1, 2000

CLA2 RR:CR:GC 962966 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 8205.60.00

Mr. Richard Ambrose, Jr.
F.J. Neil Company, Inc.
1064 Route 109
Box 617
Lindenhurst, NY 11757-0617

RE: Reconsideration of NY C86913; butane mini torch

Dear Mr. Ambrose:

This is in reference to New York Ruling Letter (NY) C86913, issued to you on April 27, 1998, which concerned the classification of the “Iroda” brand “Micro-jet MJ-300” mini torch under the Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered NY C86913 and now believe that the classification set forth is incorrect. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on March 29, 2000, in Vol. 34, No. 13 of the Customs Bulletin, proposing to revoke NY C86913 and to revoke the treatment pertaining to the mini torches. No comments were received in response to this notice.

FACTS:

The “Iroda” brand “Micro-jet MJ-300” mini torch is a compact, butane mini torch that is comprised of two components: an internal cartridge and an external shell. The internal component, “Iroda RC-30,” is a separate, disposable butane cartridge that resembles a disposable cigarette lighter. The fuel cartridge is housed in the external shell the top of which contains a flame nozzle, with cover, a depressible control button, and a safety lock. The packaging advertises the product as being appropriate for camping and outdoor use, first aid/survival kits, as well as tool kits. The reverse side of the packaging indicates that features of the article include a piezoelectric ignition system with a safety lock. Other literature submitted states that the mini torch is suitable for various “on-the-water” boat repairs or for “at-home” repairs, including soldering. The mini torch is designed to provide a concentrated, continuous flame at temperatures up to 1300° C (2,500° F).

ISSUE:

Whether the mini torches are classifiable as blow torches and similar self-contained torches under subheading 8205.60.00, HTSUS, or as cigarette lighters and other lighters under subheading 9613.80.20, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1, HTSUS, provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes[.]”

The HTSUS headings and subheadings under consideration are as follows:

8205 Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal- operated grinding wheels with frameworks; base metal parts thereof:
8205.60.00 Blow torches and similar self-contained torches, and parts thereof.

9613 Cigarette lighters and other lighters, whether or not mechanical or electrical, and parts thereof other than flints and wicks:
9613.10.00 Pocket lighters, gas fueled, non-refillable: 9613.80 Other lighters:
9613.80.20 Electrical.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the 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 ENs should always be consulted. See T.D. 8980. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Insofar as the applicability of subheading 8205.60.00, HTSUS, is concerned, we note that, because of the wording “not elsewhere specified or included,” this subheading is a socalled “basket” provision. In such provisions, classification “is appropriate only when there is no tariff category that covers the merchandise more specifically” (Apex Universal, Inc., v. United States, CIT Slip Op. 9869 (May 21, 1988)). Therefore, we are first addressing the other competing provisions. Only if classification in the competing provision is precluded will we address classification in subheading 8205.60.00, HTSUS.

The ENs to heading 9613 provide, in pertinent part:

This heading includes:

(1) Mechanical lighters.
These produce sparks, usually by means of a wheel with a milled-edge which is revolved in contact with a “flint” (generally of ferrocerium alloy).

(2) Electrical lighters.
Current from the mains or a battery produces a spark, or in certain types, a glowing heat in an electric resistor.

(3) Chemical lighters.
In these a catalyst (usually sponge platinum) is made to glow by catalytic action in the presence of a gas.

(4) Non-mechanical lighters.
One type consists of a container incorporating a fuel reservoir, and a small removable metal rod (the striker) fitted with a steel tip. The striking of the steel tip on a “flint” fixed on the outside of the container produces a spark which ignites an inflammable material near the tip of the striker.

The lighters classified in this heading may be of the pocket or table types, or may be designed for fixing on the wall, fitting to gas stoves, etc. The heading also includes lighters for motor cars or other vehicles. The heading does not cover igniters of heading 36.03, flints (heading 36.06), wicks (heading 59.08 or 70.19) or fuel in containers (ampoules, bottles, cans, etc.) of a kind used for filling or refilling cigarette or similar lighters (generally heading 36.06).

Although the disposable butane cartridge resembles a cigarette lighter, the article is not adequately described by heading 6913, HTSUS or the relevant EN. The disposable butane cartridge, “Iroda RC-30,” is manufactured specifically for use with the mini torch. Further, incorporation of the flame nozzle, with cover, a depressible control button, and a safety lock in the external shell which houses the butane cartridge readily differentiates the article from cigarette and other types of lighters provided for within the heading. Thus, the mini torch cannot be construed to be a cigarette lighter.

Unlike lighters, the primary function of which is to provide ignition for a fuel source, torches function as tools that provide sustained heat required for specific applications – generally for melting or burning. The instant product is designed to provide sustained heat, although the operating instructions warn against continued use for periods which exceed five minutes. Accordingly, we find that the mini torch is not classifiable under heading 9613, as a cigarette lighter.

The ENs to heading 8205 state, in pertinent part, that:

This heading covers all hand tools not included in other headings of this Chapter or elsewhere in the Nomenclature (see the General Explanatory Notes to this Chapter), together with certain other tools or appliances specifically mentioned in the title.

It includes a large number of hand tools (including some with simple hand-operated mechanisms such as cranks, ratchets or gearing). This group of tools includes: (F) Blow lamps (e.g., for soldering or brazing; for paint removal; for starting semi-diesel engines). These lamps are of two types, both self-contained, differing in the type of fuel used, incorporating either a fuel reservoir for mineral oil or other liquid fuel (frequently with a small pump), or a replaceable gas-filled cartridge. In some cases, a soldering or branding iron or other attachment is fitted to the tip of the lamp. The heading does not cover gas-operated welding appliances (heading 84.68).

This article is classifiable pursuant to GRI 1. It is a torch and is provided for in the heading 8205, HTSUS, and described by the ENs relevant thereto.

This determination comports with a previous ruling of this office. In HQ 952560, dated October 20, 1992, a butane gas operated torch, which imparted the essential character of a “boat patch kit,” was held to be classifiable in subheading 8205.60.00, HTSUS.

HOLDING:

The “Iroda” brand “Micro-jet MJ-300” mini torch is classifiable under subheading 8205.60.00, HTSUS, as blow torches and similar self-contained torches.

EFFECT ON OTHER RULINGS:

NY C86913 is hereby REVOKED. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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