CLA-2 CO:R:C:M 956882 KCC
Mr. Robert Slomovitz
Chief, National Import Specialist Machinery Branch
U.S. Customs Service
6 World Trade Center
Room 400A
New York, New York 10048
RE: Double Difference; overhead exhaust hose reels; 8428.90.00;
other lifting, handling, loading or unloading machinery; EN
84.28; EN 84.79; Note 7, Chapter 84
Dear Mr. Slomovitz:
This is in response to your memorandum of August 9, 1994 (CLA-
2-84:S:N:N1:103), pertaining to the double difference on electronic
Customs Form 6431 (entry number 231-19033688) concerning the tariff
classification of overhead exhaust hose reels under the Harmonized
Tariff Schedule of the United States (HTSUS). The information
associated with this entry was forwarded to this office for a
response.
FACTS:
The spring-loaded and manually operated overhead exhaust hose
reels are used for the removal of exhaust fumes in welding shops,
automotive repair facilities, etc. The exhaust hose reels are
usually suspended from ceilings to support, dispense and retract
the hoses which are connected to them. As imported, they do not
have attached rubber hoses or fans. Although after importation,
fans are frequently mounted to facilitate the removal of fumes in
the work place. The importer entered the exhaust hose reels under
subheading 8414.90.10, HTSUS, which provides for "Air or vacuum
pumps, air or other gas compressors and fans; ventilating or
recycling hoods incorporating a fan, whether or not fitted with
filters; parts thereof...Parts...Of fans (including blowers) and
ventilating or recycling hoods...."
Customs personnel in Detroit, Michigan, are of the opinion
that the merchandise under consideration is more properly
classified under subheading 8428.90.00, HTSUS, which provides for
"Other lifting, handling, loading or unloading machinery (for
example, elevators, escalators, conveyors, teleferics)...Other
machinery...." This classification is based on the opinion that
the exhaust hose reels perform a "handling" function similar to
that of hoists, tool balances and other materials handling
machinery which are used to support, lower and raise other
articles.
The concerned National Import Specialist (NIS) in New York
believes that the merchandise in question is properly classified
under subheading 8479.89.90, HTSUS, which provides for "Machines
and mechanical appliances having individual functions, not
specified or included elsewhere in this chapter...Other machines
and mechanical appliances... Other...Other...." The NIS states
that the primary function of the subject exhaust hose reels is not
to load, unload or handle a hose, but rather to store it neatly.
Additionally, the NIS notes that Explanatory Note (EN) 84.79 of the
Harmonized Commodity Description and Coding System states that
coiling machines which wind flexible cable or tubes are classified
in heading 8479, HTSUS.
ISSUE:
Are the overhead exhaust hose reels classified under
subheading 8428.90.00, HTSUS, as other lifting, handling, loading
or unloading machinery, or under subheading 8479.89.90, HTSUS, as
other machines and mechanical appliances having individual
functions, not specified or included elsewhere?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
states, in part, that "for legal purposes, classification shall be
determined according to terms of the headings and any relative
section or chapter notes...."
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System ENs may be utilized. The
ENs, although not dispositive, provide a commentary on the scope
of each heading of the HTSUS and are generally indicative of the
proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989).
EN 84.28 (pgs. 1197-1200) states that:
...this heading covers a wide range of machinery for the
mechanical handling of materials, goods, etc. (lifting,
conveying, loading, unloading, etc.). They remain here even
if specialised for a particular industry, for agriculture,
metallurgy, etc....
The heading covers lifting or handling machines usually
based on pulley, winch or jacking systems, and often including
large proportions of static structural steelwork, etc....
The exemplars in EN 84.28 include lifting gins, well drilling
derricks, tephers, teleferics, funiculars, skip hoists, wagon
tippers, elevators, conveyors, roller supports, cable operated
hauling or towing machines, wagon pushers, wagon traversers,
mechanical loaders, industrial robots, mechanical ladders, dollies,
platforms, etc.
In its condition as imported, the overhead exhaust hose reels
are not lifting, loading or unloading machinery, nor do they
"handle" materials or goods. The main purpose of the overhead
exhaust hose reels is for storage of the continuous length of hose
by coiling it around the reel/drum. This prevents the hose from
becoming tangled and keeps the hose from being a safety hazard.
Additionally, the overhead exhaust hose reels are not similar to
the types of lifting, handling, loading or unloading machinery
listed as exemplars in EN 84.28.
EN 84.79 (pgs. 1313-1319) states that heading 8479, HTSUS, is
restricted to machinery having individual functions, which:
(a) Is not excluded from this Chapter by the operation of
any Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any
other Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of
this Chapter since:
(i) No other heading covers it by reference to its
method of functioning, description or type.
and (ii) No other heading covers it by reference to its use
or to the industry in which it is employed.
or (iii)It could fall equally well into two (or
more) other such headings (general purpose
machines).
The overhead exhaust hose reels are not excluded from
classification within Chapter 84, HTSUS, pursuant to Section XVI
and Chapter 84, HTSUS, notes and, as stated previously, they are
not more specifically covered by another heading in the HTSUS.
Additionally, the overhead exhaust hose reels cannot be classified
in any other heading of Chapter 84, HTSUS, because no other heading
covers it by reference to its function, description or type, nor
by reference to its use or to the industry in which it is employed.
Furthermore, EN 84.79 states that "[t]he many and varies
machines covered by this heading include inter alia:...
(III) MISCELLANEOUS MACHINERY
This group includes:...
(18) Coiling machines for flexible cable or tubes (e.g., for
textile or metal cables or ropes, electric cables, lead
pipes).
We are of the opinion that the purpose of the coiling machines in
EN 84.79, as well as their method of operation is substantially
similar to the overhead exhaust hose reels at issue. Additionally,
Note 7, Chapter 84, HTSUS, states that:
Subject to note 2 to this chapter and note 3 to section XVI,
a machine the principal purpose of which is not described in
any heading or for which no one purpose is the principal
purpose is, unless the context otherwise requires, to be
classified in heading 8479....
Based on Note 7, Chapter 84, HTSUS, and EN 84.79, the overhead
exhaust hose reels are classified under subheading 8479.89.90,
HTSUS.
HOLDING:
The overhead exhaust hose reels are classified under
subheading 8479.89.90, HTSUS, as other machines and mechanical
appliances having individual functions, not specified or included
elsewhere.
Sincerely,
John Durant, Director