CLA-2 RR:CR:GC 964658 JAS
Mr. Paul S. Anderson
Sonnenberg, Anderson & Rodriguez
200 South Wacker Drive, 33rd Floor
Chicago, Illinois 60606
RE: HQ 952868 Modified; Mechanical Sprayers
Dear Mr. Anderson:
In HQ 952868, dated November 26, 1993, certain K.E.W. Cleaning Systems (U.S.A.), Inc., mechanical sprayers or high pressure cleaners were held to be classifiable in subheading 8424.89.00 (now 70), Harmonized Tariff Schedule of the United States (HTSUS), as other mechanical appliances for projecting, dispersing or spraying liquids or powders. The high pressure cleaners were also found to be eligible under subheading 9817.00.50, HTSUS, as machinery, equipment and implements to be used for agricultural or horticultural purposes, upon compliance with applicable law and Customs Regulations.
We have reconsidered the subheading 8424.89.00 classification and now believe that it is incorrect. We believe that the mechanical sprayers are jet projecting machines similar to steam or sand blasting machines. However, because HQ 952868 was a decision on Application for Further Review of Protest 3901-92-100453, any reliquidation of the entry in this protest will be unaffected by this decision.
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 the principles expressed in HQ 952868 was published on November 29, 2000, in the Customs Bulletin, Volume 34, Number 48. No comments were received in response to that notice.
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FACTS:
The merchandise in HQ 952868 was identified as the sprayer/cleaner models 2802V, 25A2K, 4003K, 4503KB, 1502V, 1002K, 5203K, 3803V, 1702K,1702KSA, 5003V, 2903K, 4003KSA, and the Professional and Contractor models. The sprayers consist of the following components: (1) a high pressure pump powered either by an electric motor or an air cooled internal combustion engine; (2) inlet connection to connect cold water supply to the sprayer; (3) where applicable, an electric cable to
connect the electric motor to the power supply; (4) a high pressure hose and spray wand with flat jet nozzle; and (5) a boiler system for hot water models. All components are in a common housing mounted on a wheeled frame.
On protest, you maintained that high pressure cleaning to remove manure from barns and stalls for sanitary purposes, and for cleaning agricultural machinery is a legitimate agricultural use, and that these units are principally marketed to the agricultural industry for these purposes. However, Customs liquidated the entry under protest under provision for other mechanical appliances for spraying liquids or powders, in subheading 8424.89.00, HTSUS, on the basis that the washing of barns and stalls and agricultural machinery had not been shown to be a legitimate agricultural use.
The HTSUS provisions under consideration are as follows:
8424 Mechanical appliances…for projecting, dispersing or spraying liquids or powders; steam or sand blasting machines and similar jet projecting machines:
(now 90) Other steam or sand blasting machines
and similar jet projecting machines
Other agricultural or horticultural appliances:
8424.81.10 Sprayers (except sprayers, self-contained, having a
capacity not over 20 liters)
Other:
8424.89.00 (now 70) Other
ISSUE:
Whether the sprayer/cleaner models are jet projecting machines similar to steam or sand blasting machines.
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LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
In addition to removing manure from barns and stalls, high pressure cleaning machines and appliances are used to clean house exteriors, cars, decks, boats, lawn equipment, sidewalks, gutters, patio furniture, among other things. They may be either commercial or domestic, mounted on a wheeled chassis or floor standing, and consist basically of either electric or gasoline-powered, motor driven pumps or pistons which force water through a hose to a wand, nozzle or other aperture to attain a high pressure spray to clean the surface of the target article. At lower pressures, some models may have a suction hose that draws detergent or other cleaning solvent from a reservoir into the system to enhance the washer’s cleaning capability.
We continue to be of the opinion that classification under subheading 8424.81.10 is undocumented because of insufficient evidence that the sprayers are principally used in agricultural or horticultural pursuits. In our opinion, the relevant issue is whether power washers are jet projecting machines “similar” to steam or sand blasting machines. To resolve this issue requires that we identify the characteristic or characteristics that steam or sand blasting machines have in common, and whether the power washer at issue shares that/those characteristics. This is the statutory rule of construction ejusdem generis. To be classifiable in subheading 8424.30.90, HTSUS, the high pressure cleaners the subject of HQ 952868 must be substantially the same as steam or sand blasting machines in terms of design, construction, function, and use.
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The ENs on p. 1287, under the heading (C) STEAM OR SAND BLASTING MACHINES AND SIMILAR JET PROJECTING MACHINES, include the following:
Sand blasting machines and the like are often of heavy
construction and sometimes incorporate compressors.
They are used for de-scaling or cleaning metal articles,
for etching or putting a matt surface on glass, stone, etc,
by subjecting the articles to the action of high pressure jets
of sand, metal abrasives, etc. They are usually fitted with
dust extractors to remove the residual sand and dust. The
heading also covers steam blast appliances used, for example,
for de-greasing machined metal, etc.
From the EN description, it is apparent that sand blasting machines, steam blast appliances, and pressure cleaners or washers all have the same essential components, i.e., motor, pump or piston and spraying nozzle or wand; steam blast appliances and pressure washers commonly incorporate a heater coil which gives them the ability to create steam; whether using steam or sand, pressurized water or heated pressurized water, alone or in combination with a cleaning solvent, all are of a class or kind of machines and appliances used for cleaning purposes to remove foreign matter from a target surface; and (3) all project their cleaning media, that is, they discharge or emit a forceful stream of effluent from a nozzle, wand or other narrow opening. We conclude that in terms of design, construction, function and use, the high pressure sprayer/ cleaners in HQ 952868 are jet projecting machines similar to steam or sand blasting machines.
In an effort to achieve uniformity in the interpretation of the Harmonized System (HS) at the international level, Customs 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 Customs is not bound by them. Nevertheless, a ruling from the Munich Branch of the German Customs Directory, and another from Revenue Canada have recently been brought to our attention. These rulings classify power washers believed to be substantially similar in design and function to the high pressure sprayer/cleaners at issue here in subheading 8424.30.80 (now 90). These rulings are consistent with our classification under the HTSUS.
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HOLDING:
Under the authority of GRI 1, the high pressure sprayer/cleaner models the subject of HQ 952868 are provided for in heading 8424. They are classifiable in subheading 8424.30.90, HTSUS.
EFFECT ON OTHER RULINGS:
HQ 952868, dated November 23, 1993, is modified as to this classification. However, these models remain eligible for classification under subheading 9817.00.50, HTSUS, upon compliance with applicable law and Customs Regulations. 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