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HQ H003372




November 28, 2007

CLA-2: OT:RR:CTF:TCM H003372 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8450.20.0090

Area Director
U.S. Customs and Border Protection
101 E. Main Street
Norfolk, VA 23510

RE: Application for Further Review of Protest No. 1401-06-100227

Dear Port Director:

This is in reply to your correspondence dated November 7, 2006, forwarding Application for Further Review of Protest (AFR) No. 1401-06-100227, filed by Whirlpool Corporation.

The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of front load washing machines under subheading 8450.11.0040 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

On November 4, 2005, protestant entered the merchandise subject to this protest in subheading 8450.20.0090, HTSUSA, which provides for: “Household- or laundry-type washing machines, including machines which both wash and dry; parts thereof: Machines, each of a dry linen capacity exceeding 10kg, other.” The merchandise was liquidated on January 27, 2006 in subheading 8450.11.0040, HTSUSA, which provides for: “Household- or laundry-type washing machines, including machines which both wash and dry; parts thereof Machines, each of a dry linen capacity not exceeding 10kg: Fully automatic machines, Other: Top loading.”

On July 25, 2006, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in subheading 8450.11.0040, HTSUSA. Protestant’s AFR request was approved. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3).

In support of protestant’s application for further review, protestant alleges that the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25 as we have been unable to locate any rulings which address dry linen capacity.

FACTS:

The merchandise at issue consists of front load washing machines, identified as model number GHW9150PW. The washing machines measure 38 inches by 27 inches by 31.5 inches and have a tub volume of 3.8 cubic feet. In its protest, the protestant submitted performance testing of the subject merchandise in accordance with the International Electrochemical Association (IEC) standard 60456 which indicate that the performance ratio

The performance ratio is determined by dividing the average sum of the soiling values (typical soil removal performance) for each of the four soiling types (carbon black/mineral oil, blood, chocolate and milk and red wine) for the washing machine under test and the reference washing machine. of a 9.0 kg load of linen averages 1.05% while 10.5 kg load of linens averages 1.02%.

ISSUE:

Whether the washing machines are classified in subheading 8450.11.0040, HTSUSA, as machines of a dry linen capacity not exceeding 10kg or in subheading 8450.20.0090, HTSUSA, as machines of a dry linen capacity exceeding 10kg.

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 8450, HTSUSA, provides in relevant part:

8450: Household- or laundry-type washing machines, including machines which both wash and dry; parts thereof:

Machines, each of a dry linen capacity not exceeding 10 kg:

8450.11.00 Fully automatic machines . . . . . . . . . . . . . . . . . . . . .

8540.12.00 Other machines with built-in centrifugal dryer . . . . . .

8450.19.00 Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8450.20.00 Machines, each of a dry linen capacity exceeding 10 kg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The term “dry linen capacity” is not defined in the HTSUS nor the EN’s. Where not defined in a legal note under the HTSUS or clearly described in the ENs, tariff terms are construed in accordance with their common and commercial meanings which are presumed to be the same. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

The IEC, a global organization that prepares and publishes international standards for all electrical, electronic and related technologies which serve as a basis for national standardization, utilizes a standard referred to as “rated capacity.” See IEC standard 60456. “Rated capacity” is defined as the “maximum mass of dry textiles which the manufacturer declares can be treated in a specific programme.” Id.

Further, we have reviewed several Binding Tariff Information letters issued by various member states of the European Union (EU) and note that the washing machines’ “dry linen capacity” is expressed as the maximum amount of textiles that can be cleaned in all operations by the washing machine.

In an effort to achieve uniformity in the interpretation of the Harmonized System (HS) at the international level, CBP 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 CBP is not bound by them. Nevertheless, while neither legally binding nor dispositive, they may provide a commentary on the scope of the term at issue. Accordingly, we are of the opinion that the “dry linen capacity” is synonomous with “rated capacity” as defined by the IEC. Therefore, we are applying IEC standard 60456 as the means by which dry linen capacity should be determined for classification purposes. IEC standard 60456 section 7 states that a washing machine with a rated capacity of 10kg shall consist of a base load (textile load without strips of standardized soiling) of 3 sheets and 22 pillowcases. The sheets and pillowcases are required to meet specific values also identified in section 7 of IEC standard 60456.

Protestant has submitted a performance test conducted by protestant in accordance with the IEC standard 60456 that demonstrated that the washing machine was able to meet the standards of the IEC standard 60456 performance test using 10.5 kg load of linens with marginal impact on performance results. Specifically, a 9.0 kg load of linens yielded a performance ratio of 1.05% while a 10.5 kg load of linens yielded a performance ratio of 1.02%. Based on the negligible differences of performance ratios for the two different loads, we conclude that the washing machine has a dry linen capacity greater than 10.5 kg.

HOLDING:

Protest number 1401-06-100227 is granted in full. The washing machines are classified in heading 8450, HTSUSA. They are specifically provided for in subheading 8450.20.0090 HTSUSA, which provides for “Household- or laundry-type washing machines, including machines which both wash and dry; parts thereof: Machines, each of a dry linen capacity exceeding 10kg, other.” The column one, general rate of duty is 1% ad valorem.

In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), 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 the decision. Sixty days from the date of the decision the Office of International Trade Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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