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HQ 964371




October 12, 2000

CLA-2 RR:CR:GC 964371 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 8419.89.90

Port Director
U.S. Customs Service
110 S. 4th Street
Minneapolis, MN 55401

RE: Protest 3501-99-100060; Hot air tools

Dear Sir:

This is our decision with respect to Protest 3701-99-100060 filed on behalf of Wagner Spray Tech Corporation (“protestant”) concerning the classification of certain hot air tools under the Harmonized Tariff Schedule of the United States (“HTSUS”).

FACTS:

The three subject entries were filed between March 3, 1998 and October 12, 1998. All three entries were liquidated on July 16, 1999. The protest was filed on October 6, 1999.

The file indicates that the tools were entered under subheading 8508.80.00, HTSUS. The entries were rate advanced and liquidated under subheading 8419.89.90, HTSUS. The protestant now claims that the tools are classified in subheading 8516.79.00, HTSUS.

The tools are hand-held devices with a pistol grip which plug into a 120 volt AC outlet. Each tool incorporates a self-contained electric motor which powers a fan that blows air over a heating element with a variety of pre-set temperature settings.

The product information (HT3000) in the file states the following functions or information relative to the tools: “Variable heat settings enhance versatility. Higher settings are ideal for paint removal. Thawing of pipes. Lower settings are ideal for bending and shaping of plastic materials. Removing flooring.” Additional product information (HT1100) provides: “Removing flooring, adhesives. Bending, molding plastics. Paint/varnish removal. Loosen rusted nuts/bolts. Thawing frozen pipes.”

The protestant states that the tools are for household use and therefore should be classified as other electrothermic appliances of a kind used for domestic purposes.

ISSUE:

What is the tariff classification of the subject tools?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

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’s 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:

8419 Machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating ... other than machinery or plant of a kind used for domestic purposes ...; parts thereof:

Other machinery, plant or equipment:

8419.89 Other:

8419.89.90 Other

8508 Electromechanical tools for working in the hand with self-contained electric motor; parts thereof:

8508.80.00 Other tools

8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof:

Other electrothermic appliances:

8516.79.00 Other

Legal Note 2 to Chapter 84, HTSUS, provides, in pertinent part: “Heading 8419 does not ... cover: ... (e) Machinery or plant, designed for mechanical operation, in which a change of temperature, even if necessary, is subsidiary.”

EN 85.16 (E) states: “This group includes all electro-thermic machines and appliances provided they are normally used in the household.” [Emphasis in original.] Examples provided in that section include the following: microwave ovens; other ovens and cookers; coffee or tea makers; toasters; kettles, saucepans, steamers; non-mechanical wash boilers; waffle irons; and plate warmers and food warmers.

In HQ 962217 dated April 9, 1999, we held certain hot air tools to be classified in subheading 8419.89.90, HTSUS. In HQ 962217, we cited HQ 960936 dated January 29, 1998, and stated:

HQ 960936 ... confirmed that the hot air guns were described by heading 8419. HQ 960936 refuted many of the conclusions in HQ 083699 and held that the hot air guns do, in fact, treat epoxies, plastic, paints, tiles or other materials by causing a transformation of those materials resulting principally from the temperature change. In addition, the ruling noted that the fan and motor in the hot air guns are mechanical equipment, but they do not perform the main function of the devices. The function of the fan and motor are clearly subordinate to the primary function of the hot air guns which is to produce hot air.

In HQ 954370 dated September 1, 1993, we held a hot air blowing device (motor operated which incorporated a fan that blows air over an electric element) to be classifiable in subheading 8419.89.50, HTSUS. (Subheading 8419.89.50 is now subheading 8419.89.90.)

With respect to heading 8516, we note that while the subject tools can and will be used in the home, they will also be used in other settings, e.g., commercial and industrial space. The tools are widely used by professional tradesmen such as carpenters, plumbers, contractors, etc. in various non-domestic and domestic settings. The protestant has not provided satisfactory documentary evidence that the tools are principally for domestic use. We note further that the tools are not of the same class or kind as the machines and appliances enumerated in EN 85.16 (E) which generally include appliances for the preparation of food.

The protestant entered the tools under heading 8508, but has apparently abandoned that claim in its protest. We note that heading 8508 is not applicable because the subject tools are not electromechanical.

Accordingly, we find that the tools are provided for in heading 8419, HTSUS, and are classified in subheading 8419.89.90, HTSUS, as: “Machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating ..., other than machinery or plant of a kind used for domestic purposes ...; parts thereof: ... Other machinery, plant or equipment: ... Other: Other.” This finding is consistent with HQ 962217 and HQ 960936.

HOLDING:

The tools are provided for in heading 8419, HTSUS, and are classified in subheading 8419.89.90, HTSUS, as: “Machinery, plant or laboratory equipment, whether or not electrically heated, for the treatment of materials by a process involving a change of temperature such as heating ..., other than machinery or plant of a kind used for domestic purposes ...; parts thereof: ... Other machinery, plant or equipment: ... Other: Other.”

You are instructed to DENY the protest.

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 in accordance with the decision must be accomplished prior to mailing of 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.treas.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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