HQ 959649

APRIL 1, 1997

CLA-2 RR:TC:MM 959649 JAS

CATEGORY: Classification

TARIFF NO.: 8419.39.00

Port Director of Customs

700 Doug Davis Drive

Atlanta, GA 30354

RE: PRD 1704-95- 100633; Painting Booth, Prefabricated Enclosure for
Drying Newly Painted Cars; Air Intake Unit, Heat Exchanger, Gas Burner,
Extracting Fan, Electric Control Panel; Heading 8419, Machinery for
Treatment of Materials by Heating, Drying; Structures of Iron or Steel,
Heading 7308; Prefabricated Building, Heading 9406; Specificity, GRI

3(a); NY 870999, NY 879773

Dear Port Director:

This is our decision on Protest 1704-95-100633, filed

against your classification of painting booths from Italy. The

protested entry was liquidated on November 13, 1995, and this

protest timely filed on December 5, 1995.

FACTS:

The merchandise under protest is the Welbilt painting/drying

booth. It is apparatus for painting and drying vehicles or their

components. The painting is done manually by a technician

standing in the booth, which is a steel enclosure consisting of

prepainted interlocked panels with windows and a three-fold entry

door measuring 8ft. 2in. x 9ft. 2in. In operation, fresh air is

drawn in from the outside by a motor-driven fan, filtered and

cleaned of dust, then heated in a plate-type heat exchanger to

the temperature indicated on a thermostat. A gas burner heats

the plates in the heat exchanger with the heat transferring to

the ambient air as it passes over the plates. The heated air is

then ducted into a plenum in the ceiling of the booth and down

drafted over the newly-painted article. Paint overspray is

trapped by dry filters and contaminated air is extracted by

motor-driven fans. The entire operation is program-controlled.

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The painting booth was entered under a provision in heading

8424, Harmonized Tariff Schedule of the United States (HTSUS),

for mechanical spraying appliances. The entry was liquidated

under a provision in heading 7308 for structures of iron or

steel. Provisions in heading 9406 for prefabricated buildings,

and in heading 8419, machinery for the treatment of materials by

a process involving a change of temperature, have been

recommended for consideration. Because the actual spray painting

of cars and their parts or components is performed manually in

the painting/drying booth by a technician, and because protestant

has provided no evidence to substantiate the entered

classification, we will omit any discussion of that provision.

The provisions under consideration are as follows:

7308 Structures\...and parts of structures\...of iron or steel:

7308.90 Other:

Other:

7308.90.95 Other

\* \* \* \*

8419 Machinery\...for the treatment of materials\...by a process
involving a change of temperature such as heating\...drying,\... other
than a kind used for domestic purposes:

Dryers:

8419.39.00 Other

\* \* \* \*

9406.00 Prefabricated buildings:

9406.00.80 Other

ISSUE:

Whether heading 8419 or heading 9406 provides the most

specific description for the painting/drying booth.

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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 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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.

35127, 35128 (Aug. 23, 1989).

Heading 7308, the liquidated provision, is in Section XV.

Pursuant to Section XV, Note 1(f), if the painting/drying booth

is an article of heading 8419, or any other heading of Chapter 84

or Chapter 85, it cannot be classified in heading 7308.

It is clear from the available evidence that this apparatus

is principally used to cure/dry paint utilizing heat, and is

described in the text of heading 8419. However, relevant ENs, at

p\. 1582, describe prefabricated or industrialized buildings of

heading 9406. These are of any material and can be designed for

a variety of uses, to include work site accommodation, shops,

sheds and garages. These buildings may or may not be equipped.

Only built-in equipment normally supplied is to be classified

with the building. Among this is heating and air conditioning

equipment. Whether or not the painting/drying booth is

\"equipped\" with heating equipment because it is attached to the

booth by ducts is problematic. It is sufficient to say that the

booth is prima facie described by heading 9406.

GRI 3(a), HTSUS, states, in relevant part, that where goods

are, prima facie, classifiable under two or more headings, the

heading which provides the most specific description shall be

preferred to headings providing a more general description. One

judicial guideline commonly used in resolving issues of

specificity between or among competing tariff provisions is that

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use provisions generally, but not always, prevail over eo nomine

provisions or provisions providing a general description, except

where either of the latter provide an obviously more specific

description. Heading 8419 is a use provision while heading 9406

is more descriptive in nature. Another guideline favors the

provision which has the requirements that are the more narrow and

specific or which are the most difficult to satisfy. In this

case, heading 8419 describes machinery which does a specific

thing - it treats materials - by named processes involving a

change of temperature - heating and drying, for example. Goods

of heading 9406, on the other hand, perform no active function.

Also, they can be of any material, are designed for a variety of

uses, and may or may not be equipped. In our opinion, heading

8419 provides the most specific description for the painting/

drying booth. Relevant heading 8419 ENs, at p. 1176, describe

tunnel dryers, consisting of large chambers through which

products travel by conveyor against a current of hot air. The

painting/drying booth functions in substantially the same manner.

In addition, NY 870999, dated February 25, 1992, and NY 879773,

dated November 24, 1992, classified similar painting/drying

booths in subheading 8419.39.00, HTSUS. This eliminates heading

7308 from consideration.

HOLDING:

Under the authority of GRI 3(a), HTSUS, the Welbilt

painting/drying booth is provided for in heading 8419. It is

classifiable in subheading 8419.39.00, HTSUS. Since the rate of

duty under this provision is less that the rate under the claimed

classification, the merchandise should be reclassified under

subheading 8419.39.00 and the protest ALLOWED under that

provision.

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

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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