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HQ 963699




JANUARY 10, 2001

CLA-2 RR:CR:GC 963699 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.30.90

Port Director of Customs
New York/Newark Area
C/O Chief, Residual Liquidation and Protest Branch 6 World Trade Center, RM 761
New York, NY 10048-0945

RE: Protest 1001-99-102104; Power Washer

Dear Port Director:

This is our decision on protest 1001-99-102104, filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the Kärcher model 330 M Power Washer. The entry under protest was liquidated on January 29, 1999, and this protest timely filed on April 26, 1999. A video depicting the washer in operation was submitted for our examination. In addition, counsel for the protestant presented additional facts and legal arguments at a meeting in our office on September 21, 2000, which were confirmed in a submission, dated October 19, 2000.

FACTS:

The merchandise at issue, the model 330 M Power Washer, is a high pressure cleaner which sprays or disperses water under pressure for the purpose of removing dirt, grit, stains, molds and other contaminants from buildings, boats, decks, vehicles and various other external surface areas. The power washer takes low-pressure tap water, passes it through a pump to increase the water’s exit pressure, then through a high-pressure hose, handgun and spray lance to a high-pressure rotary nozzle. The maximum permissible water feed temperature on these devices is between 104 and 348 degrees Fahrenheit (60˚C -140˚C), while the
maximum output temperature of these devices between 186 and 545 degrees Fahrenheit (60˚C - 285˚C). At lower pressures a suction hose draws detergent from a reservoir into the system to enhance the washer’s cleaning capability. Utilizing either an electric or gasoline motor, the power washer imported in both commrecial and household types, the imported in both commercial and household types, the smallest measuring 387 mm x 170 mm x 246 mm. A wet blasting attachment, available as an option, converts the power washer into a device that sprays or disperses a sand/water mixture. However, the model 330 M, which we presume to be a basic power washer, is the subject of this protest.

The power washer was imported under a provision of heading 8424, HTSUS, for steam or sand blasting machines and similar jet projecting machines. The entry was liquidated under a provision of heading 8424 for other mechanical appliances for dispersing or spraying liquids. Counsel for the protestant maintains the entered provision is correct because, under General Rule of Interpretation (GRI) 3(a), HTSUS, applied at the subheading level, the power washer is “similar” to steam or sand blasting machines, because all three are pressure-types, all are used for cleaning purposes, and at least one type utilizes water, albeit in a different form (i.e., steam). Thus, the entered provision is more specific than the liquidated provision which is a residual, basket provision. Counsel cites NY C88579, dated June 4, 1998, and claims that it incorrectly classified pressure washers, substantially similar to the power washer at issue, in subheading 8424.89.70, HTSUS. Finally, counsel cites two rulings from foreign Customs administrations which purport to classify these power washers in subheading 8424.30.80 (now 90).

The HTSUS provisions under consideration are as follows:

Mechanical appliancesfor projecting, dispersing or spraying liquids or powders; steam or sand blasting machines and similar jet projecting machines:

(now 90) Other steam or sand blasting machines and similar jet projecting machines

Other:

8424.89.70 Other

ISSUE:

Whether the power washer is a jet projecting machine similar to steam or sand blasting machines.

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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. Though not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System. Customs believes the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

In our opinion, whether the model 330 M Power Washer is a jet projecting machine “similar” to steam or sand blasting machines, requires that we identify the characteristic or characteristics that steam or sand blasting machines have in common, and whether the power washer at issue shares that/those characteristics.

The ENs on p. 1287, under the heading (C) STEAM OR SAND BLASTING MACHINES AND SIMILAR JET PROJECTING MACHINES, include the following:

Sand blasting machines and the like are often of heavy construction and sometimes incorporate compressors. They are used for de-scaling or cleaning metal articles, for etching or putting a matt surface on glass, stone, etc, by subjecting the articles to the action of high pressure jets of sand, metal abrasives, etc. They are usually fitted with dust extractors to remove the residual sand and dust. The heading also covers steam blast appliances used, for example, for de-greasing machined metal, etc.

From the EN description, it is apparent that sand blasting machines, steam blast appliances, and power washers all have the same essential components, i.e., motor, pump and spraying wand; steam blast appliances and power washers commonly incorporate a heater coil which gives them the ability
to create steam; whether using steam or sand, pressurized water or heated pressurized water, alone or in combination with a cleaning solvent, all are of a class or kind of machines and appliances used for cleaning purposes to remove foreign matter from a target surface; and (3) all project their cleaning media, that is, they discharge or emit a forceful stream of effluent from a nozzle or narrow opening. We conclude that in terms of design, construction, function and use, the model 330 M Power Washer at issue is a jet projecting machine similar to steam or sand blasting machines.

The ruling counsel cites, NY C88579, was revoked by HQ 964635, dated January 4, 2001, in which we held that power washers were classifiable in subheading 8424.30.90, HTSUS. HQ 964658, of the same date, is in accord. The principles of HQ 964635 and HQ 964658 are incorporated by reference in this decision. In addition, Customs regards rulings from other countries that classify identical or substantially similar merchandise as instructive. However, such rulings do not constitute the official interpretation of the HS. For this and other reasons, these rulings shall not be treated as dispositive and Customs is not bound by them. Nevertheless, however, the rulings counsel cites, one from the Munich Branch of the German Customs Directory, and another from Revenue Canada, classify power washers believed to be substantially similar to the ones at issue here in subheading 8424.30.80 (now 90). These rulings are consistent with our classification under the HTSUS.

HOLDING:

Under the authority of GRI 1, the Kärcher model 330 M Power Washer, as described, is provided for in heading 8424. It is classifiable in subheading 8424.30.90, HTSUS.

The protest should be ALLOWED. 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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