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HQ 964369




March 29, 2001

CLA-2 RR:CR:GC 964369 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.60.00; 8509.80.00; 8479.90.95; 8509.90.55

Celsius, Inc.
4241 Brickell Street
Ontario, CA 91761

RE: HQ 953762 revoked; Evaporative air coolers

Dear Sir or Madam:

This pertains to HQ 953762, issued to the U.S. Customs office in Los Angeles, on June 29, 1993 with respect to Protest 2704-92-104992, which was filed on your behalf. In that ruling, which granted your protest, certain air coolers were found to be classified in subheading 8415.83.00, Harmonized Tariff Schedule of the United States (“HTSUS”), as other air conditioning machines, not incorporating a refrigerating unit. Certain spare parts were found to be classified in subheading 8415.90.00, HTSUS.

As detailed below, we now believe these classifications to be incorrect. This ruling sets forth the correct classifications. This ruling has no effect on the Customs entries which were the subject of the protest.

Pursuant to section 625(c), 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, 2186 (1993), notice of the proposed modification of HQ 953762, as described below, was published in the Customs Bulletin on December 20, 2000. As explained in a notice published on February 21, 2001, in Vol. 35, No. 8 of the Customs Bulletin, the period within which to submit comments on this proposal was extended to March 23, 2001. One comment was received in response to the notices. The commenter claims that the goods at issue fall squarely within heading 8415, HTSUS, because they are designed to change both air temperature and humidity by efficiently generating evaporated water into the surrounding air. The commenter states that, based upon Note 2 to Chapter 84, HTSUS, the goods are classified in subheading 8415.83.00, HTSUS. For reasons described in the LAW AND ANALYSIS section of this ruling, we disagree with the commenter.

FACTS:

The air coolers were described as follows in HQ 953762:

The merchandise, Celsius model WF-902 air cooler, is a portable appliance which is used to cool and/or humidify air in hot, dry climates such as is found in the southwestern United States. The air cooler is powered by an electric motor and contains a three-speed fan, a tank capable of holding 2.3 gallons of cold water, and a filter pad. It draws room air in past the cold water and through the filter pad, causing the temperature of the air to drop due to evaporation. This process results in an increase in the humidity of the air. The air cooler is capable of cooling rooms up to 175 square feet in size.

Various spare parts for the coolers were also the subject of the protest.

ISSUE:

What is the tariff classification of the air coolers and spare parts?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

8415 Air conditioning machines, comprising a motor-driven fan and elements for changing the temperature and humidity, including those machines in which the humidity cannot be separately regulated; parts thereof:

Other, except parts:

8415.83.00 Incorporating a refrigerating unit

Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:

8479.60.00 Evaporative air coolers

8509 Electromechanical domestic appliances, with self-contained electric motor; parts thereof:

8509.80.00 Other appliances.

Note 2 to Chapter 84, HTSUS, provides in pertinent part: “Subject to the operation of note 3 to Section XVI, a machine or appliance which answers to a description in one or more of the headings 8401 to 8424 and at the same time to a description in one or more of the headings 8425 to 8480 is to be classified under the appropriate heading of the former group and not the latter.”

Note 3 to Chapter 85, HTSUS, provides: “Heading 8509 covers only the following electromechanical machines of the kind commonly used for domestic purposes: (b) Other machines provided the weight of such machines does not exceed 20 kg, exclusive of extra interchangeable parts or detachable auxiliary devices."

As stated above, in HQ 953762 dated June 29, 1993, we determined that the air coolers were classified under subheading 8415.83.00, HTSUS, as other air conditioning machines, not incorporating a refrigerating unit; and that the spare parts were classifiable under subheading 8415.90.00, HTSUS, as parts for air conditioning machines.

At HSC 13, the Harmonized System Committee of the World Customs Organization (“WCO”) took a decision to amend the Compendium of Classification Opinions by insertion of Opinion 8479.89/9, which may be found at Annexes F/11 and L/16 to Doc. 38.760 E (HSC/13/Apr. 94). That opinion involved an article described as: “Evaporative air coolers of a weight exceeding 20 kg, which cool air by the latent heat of evaporation principle, incorporating a water-circulating system (comprising a built-in tank and pump) designed to continuously soak a filter and with an electric motor-driven fan which expels air through the filter medium. They do not include a device specially designed for humidifying or drying the air.” The HSC determined the evaporative air coolers to be classified in subheading 8479.89, HTSUS, which covers “Other machines and mechanical appliances: Other: ” within heading 8479, HTSUS. As we stated in T.D. 89-80, decisions in the Compendium of Classification Opinions should be treated in the same manner as the EN’s, i.e., while neither legally binding nor dispositive, they provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. T.D. 89-80 further states that EN’s and decisions in the Compendium of Classification Opinions “should receive considerable weight.”

We interpret the text of heading 8415, HTSUS (“... elements for changing the temperature and humidity ...”) in light of EN 84.15, which provides, in pertinent part: “This heading applies only to machines: (1) Equipped with a motor-driven fan or blower, and (2) Designed to change both the temperature (a heating or cooling element or both) and the humidity (a humidifying or drying element or both) of air, ...” [Emphasis in original.] As stated above, the HSC opinion stated that evaporative air coolers “... do not include a device specially designed for humidifying or drying the air.” Accordingly, because they are not designed to change the humidity, it is our view that evaporative air coolers are not described in heading 8415, HTSUS. Therefore, we disagree with the opinion expressed by the commenter.

In 1996, subsequent to the WCO opinion, subheading 8479.60.00, covering “Evaporative air coolers,” was added to the HTSUS. EN 84.79(III)(31) provides that : “This group includes: ... Evaporative air coolers.”

It is our determination that the goods in HQ 953762 are evaporative air coolers. Their function is described in that ruling as follows: “The air cooler draws room air in past the cold water and through the filter pad, causing the temperature of the air to drop due to evaporation.”

Accordingly, it is our determination that evaporative air coolers of a weight exceeding 20 kilograms are classified in subheading 8479.60.00, HTSUS. This is consistent with the WCO opinion cited above. The evaporative air coolers have individual functions as stated in heading 8479, i.e., they are mechanical devices whose function can be performed distinctly from and independently of any other machine or appliance. See EN 84.79. We further determine that evaporative air coolers of a weight of 20 kilograms or less are classified in subheading 8509.80.00, HTSUS. Note 3 to Chapter 85, HTSUS, excerpted above, provides that heading 8509 covers certain other machines provided that their weight does not exceed 20 kilograms.

We have not been able to determine the weight of the air coolers in HQ 953762, although we believe it is likely that their weight does not exceed 20 kilograms. This inability to determine the weight of the coolers in HQ 953762 does not detract from this ruling, since this ruling is prospective.

With respect to the parts of the evaporative air coolers, those parts not excluded by Note 1 to section XVI, HTSUS, or Note 1 to Chapter 84 and 85, nor included in other headings of Chapter 84 or 85 by Note 2(a) to Section XVI, HTSUS, and which are solely or principally used with evaporative air coolers of heading 8479 or heading 8509, are classified in subheading 8479.90.95, HTSUS, or subheading 8509.90.55, as appropriate (i.e., depending on the size of the evaporative air coolers).

HOLDING:

Evaporative air coolers which weigh more than 20 kilograms are provided for in heading 8479, HTSUS, and are classified in subheading 8479.60.00, HTSUS, as: “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter : Evaporative air coolers.” Evaporative air coolers which weigh 20 kilograms or less are provided for in heading 8509, HTSUS, and are classified in subheading 8509.80.00, HTSUS, as: “Electromechanical domestic appliances, with self-contained electric motor : Other appliances.”

With respect to the parts of the evaporative air coolers, those parts not excluded by Note 1 to section XVI, HTSUS, or Note 1 to Chapter 84 and 85, nor included in other headings of Chapter 84 or 85 by Note 2(a) to Section XVI, HTSUS, and which are solely or principally used with evaporative air coolers of heading 8479 or heading 8509, are classified in subheading 8479.90.95, HTSUS, or subheading 8509.90.55, as appropriate - they are classified in subheading 8479.90.95 if they are parts for evaporative air coolers of a weight greater than 20 kilograms; they are classified in subheading 8509.90.55 if they are parts for evaporative air coolers of a weight of 20 kilograms or less.

EFFECT on OTHER RULINGS:

HQ 953762 is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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