CLA-2 OT:RR:CTF:EMAIN H288218 PF
TARIFF NOS.: 8516.79.00; 8516.90.90; 8479.89.65; 8479.90.94
Port Director
Service Port Blaine
U.S. Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
Attn: Michelle Petrie, Senior Import Specialist
Re: Protest and Application for Further Review No: 3004-17-100339; Classification of residential and commercial steam vapor systems and their parts
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 3004-17-100339, which was timely filed on June 14, 2017 by Advanced Vapor Technologies (“Protestant” or “AVT”). The protest pertains to the classification of residential and commercial steam vapor systems and their parts under the Harmonized Tariff Schedule of the United States (“HTSUS”). The subject items were entered by Protestant and liquidated by U.S. Customs and Border Protection (“CBP”) at the Port of Blaine (“the Port”).
FACTS:
The subject merchandise consists of steam vapor systems and parts that fall into two categories: 1) residential systems which are designed and marketed for home use and 2) commercial systems which are designed and marketed for commercial or industrial applications.
The residential steam vapor systems are marketed under the Ladybug® brand name. There are different models of the Ladybug® system available with different size reservoir tanks for different size homes and different standard accessory packages. The owner’s manual for the Ladybug® system model nos. 2150 S/2200 describes it as a “household appliance . . . designed and intended to be used as a domestic steam vapor system suitable for house cleaning.” Marketing materials for the Ladybug® system, Model No. 2200ST describe it as having a “compact footprint” which makes it easy to carry the unit up and down stairs and convenient to store, and marketing materials for the Ladybug® system, Model No. 2150 describe the system as “compact” and most effective in smaller homes up to 1200 square feet.
The Ladybug® system consists of 1) a base which contains the water boiler and reservoir, 2) a steam hose with a hand grip that includes the controls for operating and adjusting the steam pressure, and 3) accessories that can be attached to the hand grip such as brushes, window cleaners, wallpaper removing attachment, and extension tubes. The base of the steam vapor system stores the water and converts it into steam vapor. The base is operated by electricity and comes with a power cord and plug that is plugged into a standard household outlet. The Ladybug® water boilers range in capacity from 1.8 quarts to 2.5 quarts. The motor power ranges from 1500 watts to 1700 watts. Maximum steam pressure ranges from 58 pounds per square inch (“psi”) to 80 psi. The steam hose connects the hose to the base via the steam hose socket, a flexible hose, and a hand grip which is held in the user’s hand. The steam vapor is controlled by the controls on the hand grip. A push button releases a jet of steam from the system through a narrow nozzle on the hand grip. The steam is released from the hand grip into the desired attachments such as a brush, window cleaner or other attachments.
AVT’s commercial steam vapor systems are marketed under the brand names MondoVap® and VaporJet®. The commercial systems are designed for use in hospitals, elder care facilities, hotels, schools and other commercial and industrial locations. The MondoVap® and VaporJet® systems share the same basic components as the residential Ladybug® system such as the 1) the base containing the water boiler and reservoir, 2) the steam hose with hand grip, and 3) accessories. However, the size and capacity of the components differ. The commercial systems have a larger water boiler in the base and thereby have larger capacities allowing for the system to be used in larger areas. The larger water capacity increases the weight of the system when filled, which makes it impractical for residential use. The MondoVap® and VaporJet® systems come standard with a wheeled cart to carry both the base and its accessories. The steam hoses in the MondoVap® and VaporJet® are longer than the Ladybug® system which allows for greater reach in larger rooms and with higher ceilings. The MondoVap® and VaporJet® systems also have higher maximum steam pressure capabilities than the Ladybug® system, which allow for the cleaning of larger surfaces. The functional steam pressure for the MondoVap® and VaporJet® systems is 15psi to 55psi, with a maximum operating pressure of 98psi. On the AVT website, the commercial vapor systems, such as the MondoVap® and VaporJet®, are described as producing “only low pressures, usually in the range of 50 to 60 [psi]” and that “[l]ow pressures are also essential for getting the job done without making a huge mess.”
The MondoVap® and VaporJet® systems come with more accessories such as an additional extension tube to allow for higher ceilings, more specialized brushes and nozzles in a variety of sizes and materials. AVT’s Commercial User Tip Guide also lists which tools and accessories for the MondoVap® and VaporJet® systems should be used to clean a particular surface. Brushes are suggested to be used for cleaning floors, carpets, walls and ceilings, upholstery, blinds, glass, and kitchens.
The subject merchandise was entered on February 4, 2016 and August 5, 2016. The residential steam vapor systems were classified under subheading 8516.79.00, HTSUS, which provides for “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: Other.” The parts for the residential steam vapor systems were classified under subheading 8516.90.90, HTSUS, which provides for parts of other electrothermic appliances of a kind used for domestic purposes. The commercial steam vapor systems were classified under subheading 8479.89.65, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Electromechanical appliances with self-contained electric motor: Other.” The parts for the commercial steam vapor systems were classified under subheading 8479.90.41, HTSUS, which provides for parts of machines and mechanical appliances of subheading 8479.89.10 or 8479.89.70 having individual functions, not specified or included elsewhere in Chapter 84.
Protestant claims that all of the steam vapor systems should be classified under subheading 8424.30.90, HTSUS, 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: Steam or sand blasting machines and similar jet projecting machines: Other.” The Protestant further submits that the repair and replacement parts for the residential and commercial steam vapor systems should be classified under subheading 8424.90.90, HTSUS, which provides for “Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders…, parts thereof : …Parts: Other: Of steam and similar jet projecting machines.”
ISSUES:
Whether the subject residential steam vapor systems are classified in subheading 8424.30.90, HTSUS, as steam or sand blasting machines and similar jet projecting machines or 8516.79.00, HTSUS, as other electrothermic appliances of a kind used for domestic purposes.
Whether the subject residential steam vapor system parts are classified in subheading 8424.90.90, HTSUS, as other parts of steam and similar jet projecting machines or 8516.90.90, HTSUS, as parts of other electrothermic appliances of a kind used for domestic purposes.
Whether the subject commercial steam vapor systems are classified in subheading 8424.30.90, HTSUS, as steam or sand blasting machines and similar jet projecting machines or 8479.89.65, HTSUS, as an other machine and mechanical appliance.
Whether the subject commercial steam vapor system parts are classified in subheading 8424.90.90, HTSUS, as other parts of steam and similar jet projecting machines, 8479.90.41, HTSUS, as parts of articles of subheading 8479.89.10 or 8479.89.70, or subheading 8479.90.94, HTSUS, as parts of an other machine and mechanical appliance.
LAW AND ANALYSIS:
Initially, we note that the matters protested are protestable under 19 U.S.C. §1514(a) (2) as decisions on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protests No. 3004-17-100339 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(c) because the decision involves matters previously ruled upon by the Commissioner of CBP or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The 2016 HTSUS provisions under consideration are as follows:
8424 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;
8424.30 Steam or sand blasting machines and similar jet projecting machines:
8424.30.90 Other.
8479 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
Electromechanical appliances with self-contained electric motor:
8479.89.65 Other.
8479.90 Parts:
8479.90.41 Of articles of subheading 8479.89.10 or 8479.89.70.
8479.90.94 Other.
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 Other.
8516.90 Parts:
8516.90.90 Other.
Additional U.S. Rules of Interpretation 1 (AUSR1), HTSUS, provides, in part:
In the absence of special language or context which otherwise requires:
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use[.]
Note 2 to section XVI, HTSUS, states:
Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
Parts which are goods included in any of the headings of chapter 84 or 85 (other than heading 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings.
Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind. . . .
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to 84.24 provides, in pertinent part, as follows:
This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray.
(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 are fitted with triggers or other valves for controlling the flow through the nozzle, which is usually adjustable to give a jet or more or less divergent spray. They are used for spraying paint or distemper, varnishes, oils, plastics, cement, metallic powders, textile dust, etc.
(C) STEAM OR SAND BLASTING MACHINES AND SIMILAR JET
PROJECTING MACHINES
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.
The EN to 84.79 provides, in relevant part, as follows:
For this purpose the following are to be regarded as having “individual functions”:
Mechanical devices, with or without motors or other driving force, whose function
can be performed distinctly from and independently of any other machine or appliance.
Protestant maintains that the Ladybug®, MondoVap®, and VaporJet® systems and their parts are classified under heading 8424, HTSUS, which covers, inter alia, “. . . steam or sandblasting machines and similar jet projecting machines; parts thereof.”
The subject Ladybug®, MondoVap®, and VaporJet® systems are mechanical appliances that produce and apply steam for the purpose of cleaning surfaces and textiles. However, the Ladybug®, MondoVap®, and VaporJet® systems do not project steam with a velocity that would make them comparable to the steam blasting and jet projection machines described in EN 84.24. Notably, the Protestant’s website states that its commercial steam vapor machines, which include the MondoVap® and VaporJet® systems, function using “low pressure,” that the vapor systems function by concentrating heat at the work surface, and are designed to be used through “surface contact” with the areas of concern. By contrast, the steam blasting and jet projection machines described in EN 84.24 generally use highly pressured water that are discharged by a forceful stream. See e.g., Headquarters Ruling (“HQ”) H104896, dated July 13, 2010 (classifying a deburring machine under subheading 8424.30.90, HTSUS, where the machine projected water and detergent via a high pressure jet stream and was heavily constructed); HQ 964637, dated January 4, 2001 (finding that a wet jet pressure washer powered by a 5 horsepower gasoline engine that projected tap water through a high-pressure hose was similar to a steam or sand blasting machine of heading 8424, HTSUS); and HQ 964664, dated January 4, 2001 (finding that a high pressure washer designed to increase pressure on water from a faucet to as much as 1,000 pounds per square inch and deliver water through a high pressure hose to a gun assembly to be sprayed through a nozzle was similar to a steam or sand blasting machine of heading 8424, HTSUS).
Protestant cites to two CBP rulings to support its asserted classification under heading 8424 HTSUS. See HQ 964658, dated January 4, 2001 and New York Ruling Letter (“NY”) J89361, dated October 2, 2003. In HQ 964658, CBP found that mechanical sprayers used to remove manure from barns and stalls were jet projecting machines similar to steam or sand blasting machines of heading 8424, HTSUS. In HQ 964658, CBP likened the mechanical sprayers with other types of high pressure cleaning machines, which included machines to clean “house exteriors, cars, decks, boats, lawn equipment, sidewalks, gutters, patio furniture, among other things.” In NY J89361, dated October 2, 2003, CBP classified an Aqueous Washer machine that was designed to clean aluminum evaporators using spray gun appliances under subheading 8424.30.90, HTSUS. However, unlike the machines in HQ 964658 or NY J89361, the subject Ladybug,® MondoVap®, and VaporJet® systems, are not considered high pressure machines, nor do they contain spray gun appliances similar to other steam or sand blasting, jet projecting, or spray machines of heading 8424, HTSUS.
In the alternative, Protestant contends that the Ladybug®, MondoVap®, and VaporJet® systems are “spray gun” machines as described under a different provision of heading 8424, HTSUS. EN 84.24(B) notes that spray guns are, inter alia, “usually designed for attaching to compressed air or steam lines . . . fitted with triggers or other valves for controlling the flow through the nozzle, which is usually adjustable to give a jet or more or less divergent spray.” Protestant admits that the subject Ladybug®, MondoVap®, and VaporJet® systems “are not designed for attaching to compressed air or steam lines.” While Protestant maintains that the flow of steam is adjustable through a knob on the handgrip, it is not apparent how the knob adjusts the steam since the steam is expelled at a consistent rate until the reservoir is expelled. Moreover, there is no indication that the Ladybug®, MondoVap® or VaporJet® systems have the requisite triggers or valves for controlling the flow of steam through a nozzle. Instead, the product literature for the Ladybug®, MondoVap®, and VaporJet® systems indicate that the appliances are either turned on or off and the steam is evidently expelled at a consistent rate until the reservoir is drained or the appliances are deactivated. In addition, the attachments that are sold with the Ladybug®, MondoVap® or VaporJet® systems, such as the brushes or wallpaper removers, would likely not be of much use if the appliances functioned like a traditional spray gun, particularly since they are intended to be used while steam is being emitted.
Heading 8479, HTSUS and the EN 84.79 provide for machines and mechanical appliances having individual functions, not specified or included elsewhere in Chapter 84, HTSUS. In present case, the function of the MondoVap® and VaporJet® systems is to produce and apply steam for the purpose of cleaning a variety of surfaces, including hard and soft surfaces and textiles. The cleaning function performed by the MondoVap® and VaporJet® systems is not described or specifically provided for by any other heading of Chapter 84, HTSUS. Based on the foregoing, we find that the MondoVap® and VaporJet® systems meet the terms of heading 8479, HTSUS, as merchandise not described by any other heading in Chapter 84. Therefore, the subject MondoVap® and VaporJet® systems are classified under heading 8479, HTSUS, and specifically under subheading 8470.89.65, HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof.”
The Ladybug® system is prima facie classifiable under heading 8516, HTSUS, which provides, in relevant part, for “other electrothermic appliances of a kind used for domestic purposes[.]” The Section and Chapter Notes and the ENs do not provide a clear definition of the term "electro-thermic appliances of the kind used for domestic purposes." However, CBP has previously defined the term “electrothermal” as “[o]f or relating to the production of heat by electricity.” See HQ 965863, dated December 3, 2002 (citing the Webster’s II New Riverside Dictionary 423 (1988)). CBP has also defined the term “domestic” as “of or pertaining to the family or household.” See HQ 965861, dated January 7, 2003 (citing the Merriam-Webster Collegiate Dictionary, 10th ed., pg. 344 (1999)). Accordingly, goods of the heading must be the kind of electrically-heated good that is used in the household.
Because the subheading includes the language “of a kind used,” it is a “principal use” provision subject to the requirements of AUSRI 1(a), HTSUS. See Dependable Packaging Solutions, Inc. 757 F.3d 1374, 1378 (Fed. Cir. 2014) (deeming subheadings with identical language “principal use” provisions); BenQ Am. Corp. v. United States, 646 F.3d 1371, 1378 (Fed. Cir. 2011). AUSRI 1(a) calls for a determination as to the group of goods that are commercially fungible with the imported goods. Dependable Packaging, 757 F.3d at 1378. This determination in turn requires consideration of the seven Carborundum factors, which include: The general physical characteristics of the merchandise; the channels of trade in which the merchandise moves; the environment of the sale, such as the manner in which the merchandise is advertised and displayed; the expectation of the ultimate purchasers; actual use of the import as compared to use of the merchandise which defines the class; the economic practicality of so using the import; and the recognition in the trade of this use. Id. (citing United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976)).
In this case, the Ladybug® system qualifies as electrothermic because it is powered by electricity to heat water and produce steam. The owner’s manual for the Ladybug system describes it as a “household appliance . . . designed and intended to be used as a domestic steam vapor system suitable for house cleaning.” An analysis of the Carborundum factors also supports CBP’s proposed classification under heading 8516, HTSUS. It is undisputed that the Ladybug® system is primarily used for domestic purposes or in the household. Marketing materials for the Ladybug® system, Model No. 2200ST describe it as having a “compact footprint” which makes it easy to carry the unit up and down stairs and convenient to store and marketing materials for the Ladybug® system, Model No. 2150 describe the system as “compact” and most effective in smaller homes up to 1200 square feet. The Ladybug® system is advertised and marketed on the Protestant’s website, is sold through authorized dealers, and does not appear to be available for purchase in stores. After considering the Ladybug system’s characteristics and uses, we find that the Ladybug system is an electrothermic appliance designed and intended to be used for domestic purposes. Therefore, we find that the Ladybug® system is most specifically described by heading 8516, HTSUS.
CBP has classified similar steam cleaners under heading 8516, HTSUS. See HQ 959712 (May 2, 1997), NY N212837 (May 7, 2012), NY L82254 (February 16, 2005), NY I82953 (June 13, 2002), NY I81081 (April 26, 2002), and NY G88876 (March 21, 2001).
With respect to the parts of the subject steam vapor systems, the Protestant maintains that they are repair and replacement parts and are “specifically designed for sole or principal use as parts with AVT’s steam vapor systems.” To the extent that the subject parts are specifically designed for sole and principal use with subject steam vapor systems, are not considered parts of general use, nor more specifically described in another heading, or otherwise excluded from classification under another heading, they should be classified as follows: 1) the “parts” specifically designed for sole or principal use with the subject Ladybug® system should be classified under subheading 8516.90.90, HTSUS, as parts of an electrical machine and apparatus; and 2) the “parts” specifically designed for sole or principal use with the subject MondoVap®, and VaporJet® systems should be classified under subheading 8479.90.94, HTSUS, as parts of an other machine and mechanical appliance.
HOLDING:
By application of GRIs 1 and 6 and U.S. Additional Rule of Interpretation 1(a), the residential steam vapor systems are classified in heading 8516, specifically subheading 8516.79.00 of the 2016, HTSUS, which provides, in relevant part, for: “Other electrothermic appliances of a kind used for domestic purposes; . . .: Other electrothermic appliances: Other.” The 2016 general column one, rate of duty is 3.9% ad valorem.
By application of GRIs 1 (Note 2(b) to Section XVI), U.S. Additional Rule of Interpretation 1(a), and 6, the residential steam vapor system parts are classified in heading 8516, specifically subheading 8516.90.90 of the 2016, HTSUS, which provides, in relevant part, for: “Other electrothermic appliances of a kind used for domestic purposes; . . .: Parts: Other.” The 2016 general column one, rate of duty is Free.
By application of GRIs 1 and 6, the commercial steam vapor systems are classified in heading 8479, HTSUS, specifically subheading 8479.89.65 of the 2016 HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Electromechanical appliances with self-contained electric motor: Other.” The 2016 general column one, rate of duty is 2.8% ad valorem.
By application of GRIs 1 (Note 2(b) to Section XVI), and 6, the commercial steam vapor system parts are classified in heading 8479, HTSUS, specifically subheading 8479.90.94 of the 2016 HTSUS, which provides for “Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Parts: Other.” The 2016 general column one, 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 internet at www.usitc.gov/tata/hts/.
You are instructed to DENY the Protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website 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