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HQ 963661





JULY 27, 2000

CLA-2 RR:CR:GC 963661 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8467.19.50, 8479.89.97, 8479.90.95

Port Director of Customs
10 Causeway St., Suite 603
Boston, MA 22220

RE: Protest 0401-99-100365; Hand-Operated Manual and Hand-Operated Pneumatic Dispensing Guns, Cartridges, and Mixing Tubes

Dear Port Director:

This is our decision on Protest 0401-99-100365, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of dispenser guns and cartridges. The entries under protest were liquidated on August 27, October 1, and October 22, 1999, and this protest timely filed on November 24, 1999. Samples were submitted for our examination. In addition, counsel provided additional facts and legal arguments by telephone on July 26, 2000.

FACTS:

The merchandise at issue consists of components of the MixPac Dispensing System, used in a variety of bonding and encapsulation applications. These include hand-held manual and hand-held pneumatic dispenser guns, both without motors, dual-barrel plastic cartridges, and plastic mixing tubes. These are not imported as complete systems, but as multiple parts. Also at issue are component parts of the cartridge, i.e., nose plugs, pistons, piston plugs and a retaining nut, all of plastic, and a base metal removal disc. In addition, the protest covers steel and steel and fiberglass mixing tubes for industrial, floor-mounted dispensing machines and protective metal shrouds for the mixing tubes.

The cartridges have two cylinders, one containing a resin and the other a catalyst or chemical bonding agent. The mixing tubes attach to the cartridge and utilize a plastic auger to mix together and channel the flow of chemicals. Both dispensing gun models have ratchet-type gear mechanisms which, as the trigger is pressed, advance a plastic plunger forward. This pushes the piston through the cartridge, dispensing the contents through the mixing tube. The pneumatic gun is connected to a shop air compressor and discharges the mixture continuously as the trigger is pressed. Both the mixing tubes and cartridges are imported empty.

The components were entered under a provision of heading 8479, HTSUS, as parts of machines or mechanical appliances not specified or included elsewhere [in Chapter 84]. The dispenser guns were reclassified at liquidation under provisions of heading 8467, HTSUS, as tools for working in the hand, pneumatic, hydraulic or with self-contained nonelectric motor. The cartridges were reclassified at liquidation under a provision of heading 3923, HTSUS, as articles for the conveyance or packing of goods, of plastics. The plastic and base metal mixing tubes were reclassified under provisions for articles of plastics and articles of iron or steel, in headings 3926 and 7326, HTSUS, respectively.

Counsel for the protestant maintains that the pneumatic hand-held dispenser guns are provided for in heading 8467, HTSUS, and the manual hand-held dispenser guns in heading 8479, HTSUS. The cartridges and mixers qualify as “parts” for tariff purposes and, under Section XVI, Note 2(b), HTSUS, are classifiable with the machines with which they are solely or principally used.

The HTSUS provisions under consideration are as follows:

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

Other:

Other

8467.89 Other:

8467.89.50 Other

Parts:

8467.92.00 Of pneumatic tools

8467.99.00 Other

Machines and mechanical appliances having individual functions, not specified or included elsewhere [in Chapter 84]:

Other machines and mechanical appliances:

Other:

8479.89.97 Other

Parts:

8479.90.95 Other

ISSUE:

Whether the dispensing guns, the cartridges and their parts, and the mixer units, are provided for in headings 8467 and/or 8479

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. Section XVI, Note 2(b), HTSUS, states, in relevant part, that parts suitable for use solely or principally with a machine of heading 8479 are classifiable with that machine.

The pneumatic, hand-held dispensing guns are described by heading 8467, HTSUS, while the non-pneumatic hand-held manual dispensing guns are machines and mechanical appliances described by heading 8479, HTSUS. Evidence indicates that the cartridges and their component parts, and the mixing tubes, are used with both the 200 ml and the 400 ml manual, hand-held dispensers and pneumatic hand-held
dispensers. Submitted sales data for the period immediately before and after the dates of importation indicates that over 90% of the imported dispenser guns were of the non-pneumatic hand-held type. Notwithstanding the fact that the cartridges and their component parts, and the mixing tubes, are used with both type dispenser guns, the available evidence suggests principal use with the non-pneumatic hand-held type. Since such dispensing guns are provided for in heading 8479, Section XVI, Note 2(b) requires classification of this merchandise, with the exception of the plastic locking nut, in subheading 8479.90.95, HTSUS. Section XVI, Note 1(g), HTSUS, excludes from that Section parts of general use, as defined in Note 2 to Section XV, of base metal, or similar articles of plastic, which are referred to Chapter 39. Because base metal nuts of heading 7318 are parts of general use and, thus, excluded from Section XVI, the plastic locking nut is similarly excluded.

The available information indicates that mixing tubes used with both pneumatic and non-pneumatic dispensing guns are not interchangeable with those used with industrial systems. Typical of such floor mounted, industrial machines are the 1125 Series Variable Ratio Meter, Mix and Dispense System, for processing a wide range of 2-part reactive resin formulations and the Rapid-Pro Series model GPFR 1000 resin processing system for two component reactive materials. Mixing tubes used with the model GPFR 1000 attach to a hand-held dispensing gun, but the gun is permanently attached and integral to the machine and is not separately classifiable. Mixing tubes used with the 1125 Series attach to a dispensing component on the machine. Metal shrouds slip over both mixing tube types and serve to protect the user should excessive pressure cause a blowout. Because both the 1125 Series and the GPFR 1000 machines are provided for as machines or mechanical appliances of heading 8479, mixing tubes and metal shrouds solely or principally used with them are “parts” classifiable in subheading 8479.90.95, HTSUS.

HOLDING:

Under the authority of GRI 1, the pneumatic hand-held dispenser guns are provided for in heading 8467, HTSUS. They are classifiable in subheading 8467.19.50, HTSUS. The protest should be ALLOWED as to this merchandise. The manual hand-held dispenser guns are provided for in heading 8479. They are classifiable in subheading 8479.89.97, HTSUS. Since the rate under this provision is higher than the liquidated rate these guns should be reclassified under subheading 8479.89.97, HTSUS, and the protest DENIED as to this merchandise. The plastic cartridges and their component parts except for the plastic locking nut, and the plastic and base metal mixing tubes are provided for in heading 8479. They are classifiable in subheading

8479.90.95, HTSUS. These articles should be reclassified accordingly and the protest ALLOWED as to this merchandise. The plastic locking nut is provided for as other articles of plastics in heading 3926. It is classifiable in subheading 3926.90.98, HTSUS. Since the rate under this provision is the same as the liquidated rate, the locking nut should be reclassified accordingly and the protest should be DENIED as to this merchandise.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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