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HQ 967219




October 13, 2004

CLA-2 RR:CR:GC 967219 DSS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.20.9000

Ms. Saralee Antrim-Saizan
Carmichael International Service
533 Glendale Boulevard
Los Angeles, CA 90026-5097

RE: Revocation of NY K85017; air blow gun kit from China

Dear Ms. Antrim-Saizan:

This letter is pursuant to the Bureau of Customs and Border Protection (CBP) reconsideration of New York Ruling Letter (NY) K85017, dated April 26, 2004, which was issued to you on behalf of Alltrade, Inc. by the Director, National Commodity Specialist Division, New York, with respect to the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of the air blow gun kit. After review of NY K85017, CBP has determined that the classification of the kit under subheading 8467.19.5090, HTSUS, was incorrect.

Pursuant to section 625 (c), Tariff Act of 1930 (19 USC 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 revocation of NY K85017 was published in the September 1, 2004, CUSTOMS BULLETIN, Volume 38, Number 36. No comments were received in response to this notice.

FACTS:

In NY K85017, CBP wrote, in relevant part:

A sample has been provided of the Trades Pro 15 pc. Air Tool Accessory Kit, Model # 835048. This air blow gun kit includes a blow gun, three nozzles, two male and two female connectors, two universal adapters, two quick couplers, a dual tire chuck, tire gauge and wire brush. All of these items are packaged for retail on a hanging blister card. The blow gun (for blowing out tubes and pipes, and other air cleaning applications) will be used with a compressor. It is connected to the compressor’s hose utilizing the connectors, couplers and adapters in the kit. . . .

The air blow gun kit consists of at least two different articles that are, prima facie, classifiable in different headings. The kits consist of articles put up together to carry out a specific activity (i.e., air cleaning operations). Finally, the articles are put up in a manner suitable for sale directly to users without repacking. Therefore, the kits in question are within the term "goods put up in sets for retail sale." GRI 3(b) states in part that goods put up in sets for retail sale, which cannot be classified by reference to GRI 3(a), are to be classified as if they consisted of the component which gives them their essential character. It is the opinion of this office that the air blow gun imparts the essential character to this kit.

The kit was classified under subheading 8467.19.5090, HTSUS, which provides for, “Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor, and parts thereof: Pneumatic: Other: Other: Other.”

ISSUE:

What is the proper tariff classification for the instant air blow gun kit?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied. GRI 2 is not applicable here except insofar as it provides that “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides as follows:

When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUSA and are thus useful in ascertaining the classification of merchandise under the System. CBP believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Spray guns and similar appliances:
8424.20.9000 Other

Tools for working in the hand, pneumatic, hydraulic or with self-contained electric or nonelectric motor, and parts thereof: Pneumatic:
Other:
Other
8467.19.5090 Other

We still believe that the kit is considered a set under GRI 3(b) and that its essential character is provided by the air blow gun. However, upon reexamination of the kit, it is apparent that the kit is not classified under heading 8467, but instead should be classified under heading 8424, which provides for spray guns and similar appliances, by operation of Note 2 to Chapter 84, HTSUS.

The kit meets the GRI 3(b) and attendant EN (X) definition of "goods put up in sets for retail sale." First, the kit consists of at least two different articles which are, prima facie, classifiable in two different headings. Second, the items are put up together to carry out the specific activity of spraying air or air cleaning operations and the items will be used together or in conjunction with one another. Third, the articles are put up in a manner suitable for sale directly to users without repacking. We thus believe that the kit qualifies as a set of GRI 3(b).

The factor which determines essential character may be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. GRI 3(b) EN (VIII). As was stated in NY K86865, it is the air blow gun that imparts the essential character of the kit as it sprays the air needed for the air cleaning operations.

Chapter 84, Note 2, HTSUS, states:

Subject to 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. . .

The question then is whether the air blow gun kit is classified under heading 8424, HTSUS. We believe that it is. EN 84.24 provides in pertinent part:

(B) Spray Guns and Similar Appliances

Spray guns and similar hand controlled appliances are usually designed for attaching to compressed air or steam lines, and are also connected, either directly or through a conduit, with a reservoir of the material to be projected. . . . They may also be used for projecting a powerful jet of compressed air or steam for cleaning stonework in buildings, statuary, etc.

The group also includes separately presented hand controlled “anti-smudge” spraying devices for fitting to printing machines, and hand controlled metal spraying pistols operating either on the principle of a blow pipe, or by the combined effect of an electric heating device and a jet of compressed air. . . .

The instant air gun would seem to fall under the terms of the heading and the language within EN 84.24, which states that hand controlled appliances fitted with triggers or other valves for controlling flow through the nozzle fall under heading 8424. Furthermore, similar products have been classified under subheading 8424.20.90, HTSUS. In NY 832130, dated October 14, 1988, CBP classified an air blow gun used for cleaning dust and other impurities, and a general purpose spray gun used for high volume application of enamels, varnish and similar materials under that heading. See also NY R00091, dated February 5, 2004 (classifying spray-on tanning system under subheading 8424.20); NY F80605, dated December 16, 1999; NY 801566, dated September 14, 1994; and NY 865507, dated August 15, 1991.

From the description provided to CBP, we feel that the air blow gun falls under the definition of spray gun or similar appliance for tariff purposes. In this instance, the air blow gun will be connected to a compressor and will be used to blow out tubes and pipes and for other air-cleaning operations by shooting a jet of compressed air. Chapter 84, Note 2 compels classification of this kit under heading 8424.

HOLDING:

In accordance with the above discussion, the correct classification for the air blow gun kit is under subheading 8424.20.9000, HTSUSA, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof: Spray guns and similar appliances: Other.” The 2004 general rate of duty is free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY K85017 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,

Myles B. Harmon

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