HQ 959712

May 2, 1997

CLA-2 RR:TC:MM 959712 HMC

CATEGORY: Classification

TARIFF NO.: 8516.79.00

Port Director of Customs, Minneapolis

110 South 4th Street

Minneapolis, MN 55401

RE: PRD 3501-95-100245; Wagner USA Power Steamer-Wallpaper

Remover; Chapter 85; Headings 8424 and 8516; Subheadings

8516.79.00 and 8424.30.90; Explanatory Notes 84.24 and 85.16;

Electrothermic Appliances; Sand or Steam Blasting Machines;

Electrothermal; NY 859190; HQ 954781 and HQ 956226.

Dear Port Director:

This is our decision on Protest 3501-95-100245, filed

against your classification of the Wagner USA Power Steamer,

wallpaper remover (power steamer). The entries under protest

were liquidated on May 5, June 2 and June 9, 1995, and this

protest timely filed on June 28, 1995.

FACTS:

The merchandise under protest consists of a one gallon

container and a lightweight steamplate connected by an 11« foot

steam hose that weighs approximately 4.6 pounds when empty. The

machine provides continuous steam for up to 1« hours to remove

wallpaper from a wall. The user fills the container with hot tap

water which the unit heats to form steam within 15 minutes. The

steamplate is placed against a section of the wall for 10 to 20

seconds and moved along the wall to soften the wallpaper glue.

After this, the loose paper is completely detached with the help

of a scraper.

The merchandise was originally entered and liquidated under

subheading 8516.79.00 of the Harmonized Tariff Schedule of the

United States (HTSUS), as other electrothermic domestic

appliances: other. However, Protestant claims that the

merchandise is classifiable as other steam blasting machines

under subheading 8424.30.90, HTSUS.

The 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:

8424.30.10 Sand blasting machines

8424.30.90 Other\...1.5%

\* \* \* \*

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:

8516.79.00 Other\...3.7%

ISSUE:

Whether the power steamer-wallpaper remover is classifiable

as an other electrothermic appliance of a kind used for domestic

purposes under subheading 8516.79.00, HTSUS, or as a steam or

sand blasting machine and similar jet projecting machine under

subheading 8424.30.90, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the 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 Harmonized system. While not legally binding on the

contracting parties, and therefore not dispositive, the ENs

provide a commentary on the scope of each heading of the

Harmonized System and are thus useful in ascertaining the

classification of merchandise under the System. Customs believes

the notes should always be consulted. See T.D. 89-80, 54 Fed.

Reg. 35127, 35128 (Aug. 23, 1989).

Protestant contends that the merchandise is appropriately

classified under subheading 8424.30.90, as steam or sand blasting

machines and similar jet projecting machines, but provides no

arguments to support this claim. EN 84.24 provides, as follows:

\(C\) STEAM OR SAND BLASTING MACHINES AND

SIMILAR JET PROJECTING MACHINES

Sand blasting machines and the like are often of heavy

construction and sometimes incorporate compresors. They are

used for de-scaling or cleaning metal articles, for etching

or putting a matt surface on glass, stone, etc., by

sujecting the articles to the action of high presure 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.

We believe that the power steamer does not meet the

definition of EN 84.24. The power steamer is not of heavy

construction and does not produce high pressure jet steam. On

the contrary, the power steamer produces low pressure steam,

applied by a flat steamplate, to saturate and loosen wallpaper

from a wall. This is not the type of machine contemplated in

heading 8424.

Chapter 85, HTSUS, provides in pertinent part, for

electrical machinery and equipment and parts thereof. EN 85.16

at page 1470 states that this group includes all electro-thermic

machines and appliances provided they are normally used in the

household. Accordingly, we must determine whether the power

steamer falls within the definition of electro-thermic machines

normally used in the household. 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.\"

A tariff term that is not defined in the text of the HTSUS

and the ENs is construed in accordance with its common and

commercial meaning. Nippon Kogaku (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 term \"electrothermal\" is defined in Webster\'s II New

Riverside University Dictionary 423 (1988) as \"\[o\]f or relating

to the production of heat by electricity.\" The term \"domestic\"

has also been defined as \"of or pertaining to the family or

household.\" See Headquarters Ruling (HQ) 954781. Furthermore,

heading 8516 has been found to be a use provision. See HQ

956226\.

Additional U.S. Rule of Interpretation 1(a), HTSUS, states

that 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. The subject articles will thus fall under heading 8516 if

they are found to produce heat by electricity and are the class

or kind of articles principally used in the home.

The Court of International Trade (CIT) has established

various factors, which are indicative but not conclusive, to

apply when determining principal use within a particular class or

kind. They include: general physical characteristics, the

expectation of the ultimate purchaser, channels of trade,

environment of sale (accompanying accessories, manner of

advertisement and display), use in the same manner as merchandise

which defines the class, economic practicality of so using the

import, and recognition in the trade of this use. See Hartz

Mountain Corp. v. United States, 903 F.Supp. 57, 59, CIT Slip Op.

95-154 (Sept. 1, 1995).

In this instance, the power steamer is powered by

electricity to heat water and produce steam for wallpaper

removal. The container is small and light enough for one person

to use in the home. Indeed, the manufacturer describes and

advertises the power steamer as an easy to use machine with all

the features for safe household applications. Based on the

evidence provided, we believe that the merchandise qualifies as

electro-thermic, and that it is clearly designed and intended to

be principally used in the home. We therefore find that the

power steamer is described in heading 8516, as other

electrothermic appliances of a kind used for domestic purposes.

It is classifiable under subheading 8516.79.00. This is

supported by New York Ruling 859190, dated January 8, 1991, which

held that a domestic steam cleaning system is classifiable under

subheading 8516.79.00.

HOLDING:

Under the authority of GRI 1, Wagner USA Power Steamers are

provided for in heading 8516. They are classifiable in

subheading 8516.79.00, HTSUS.

This protest should be DENIED. In accordance with Section

3A(11)(b) of Customs Directive 099 3550-065, dated August 4,

1993, Subject: Revised Protest Directive, you should 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 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

Regulations and Rulings will take steps to make the decision

available to Customs personnel via the Customs Rulings Module in

ACS and to the public via the Diskette Subscription Service, the

Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

Tariff Classification Appeals Division