CLA-2 OT:RR:CTF:TCM H200443 DSR
Area Port Director
U.S. Customs and Border Protection
Seattle Service Port
1000 Second Ave., Suite 2100
Seattle, WA 98104
Attn: Michael L. Urbick, Entry Branch Chief
RE: Electric hand dryers; Application for Further Review of Protest Number
Dear Port Director:
This is in response to the Application for Further Review of Protest
3001-11-100455, dated September 7, 2011, filed by Carmichael International Service on behalf of Mitsubishi Electric and Electronics USA (Protestant), in response to your classification of an electric hand dryer under the Harmonized Tariff Schedule of the United States (HTSUS).
On April 8, 2011, Protestant imported a shipment of electric hand dryers from Nagoya, Japan, through the Port of Seattle, WA. Protestant classified the items as electrothermic hand dryers in subheading 8516.33.00, HTSUS. However, on July 29, 2011 your office classified in subheading 8414.59.60, HTSUS, which provides for fans, other, other, other. Protest was timely filed on September 7, 2011, and an Application for Further Review was has been forwarded for our consideration.
The instant hand dryer is an electric high speed automatic dryer used in commercial and residential facilities. The dryer is contact-free and removes water from the user’s hands with a strong flow of air. Air is drawn into the dryer through air intakes located in the rear of the device and is forcibly expelled through the opening at the top of the device when a user inserts his or her hands into that opening. Water from the user’s hands is collected into a drain tank located at the dryer’s bottom. The dryer also incorporates a heater that stores heat when the dryer is not in use and heats the expelling air as the device is being operated. The heating function is described by Protestant as “optional” (it can be turned off during installation of the hand dryer) and results in a “quick and comfortable experience for the user.” See Mitsubishi press release, dated November 17, 2009 <> (last visited August 7, 2014)
Is the subject hand dryer classified in subheading 8414.59.60, HTSUS, as a fan; subheading 8419, HTSUS, as a dryer; or in heading 8516, HTSUS, as an electrothermic hand dryer?
LAW AND ANALYSIS:
Initially we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on September 7, 2011, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further review of Protest 3001-11-100455 is justified pursuant to Section 174.24(a) of the CBP Regulations (19 C.F.R. §174.24(a)), which provides that further review shall be accorded to a protest where the protestant files an AFR against a decision which… “[i]s alleged to be inconsistent with a ruling of the Commissioner of [CBP] or his designee… with respect to the same or substantially similar merchandise”. Specifically, Protestant cites to New York Ruling Letter (NY) R05114, dated November 14, 2006, in support of its argument in favor of classifying the subject merchandise under heading 8516, HTSUS, as an electrothermic hand dryer.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
8414 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:
* * *
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:
* * * *
Protestant argues that the instant hand dryer is akin to the device that is the subject of NY R05114, dated November 14, 2006. In that ruling a combination towel dispenser, “sensor-operated, electronic hand dryer,” and waste receptacle (all housed together in a stainless steel cabinet) was classified in heading 8516, HTSUS, as an electrothermal hand dryer. The text of heading 8516, HTSUS, provides for electrothermic hand dryers. EN 85.16 groups such devices together with other electrothermic devices such as hair dryers, hair curlers and electrical permanent waving apparatus, and curling tong heaters. Each of those devices share the common characteristic of employing heat as the means to accomplish their functions. However, it is not evident from the facts presented in NY R05114 that the subject merchandise achieved its hand drying function via the application of heat, air, or some combination of both. That lack of clarity fatally diminishes the precedential value of the ruling.
The instant hand dryer, however, does not use heat to evaporate water that is on wet hands. It is designed to dry wet hands by expelling air at a high speed and essentially pushing the water off. Though it also possesses the complementary (and optional) ability to store heat when the dryer is not in use and use that stored heat to warm the expelling air, it does so to increase the comfort of the user. The device is perfectly capable of drying wet hands without the heating element being employed. Indeed, Protestant recognizes that the heating function is merely meant to increase user comfort, judging from its statement that the heating function provides a “quick and comfortable experience for the user.” For those reasons, we find that heading 8516, HTSUS, does not cover the instant device.
Heading 8414, HTSUS, covers, among other things, fans. EN 84.14(B) explains that one category of fans are machines designed for delivering large volumes of air or other gases at relatively low pressure and are used, inter alia, for drying many materials. In NY N028988, dated June 11, 2008, CBP considered high speed automatic hand dryers that share many of the characteristics of the instant hand dryer (contact free, strong flow of air to remove water, warming system for comfort), and found that the devices were not classified in heading 8516, HTSUS, because they relied on a high velocity flow of air, rather than heat, for drying. The devices were classified in heading 8414, HTSUS. See also NY N009241, dated May 1, 2007 (classifying a hand dryer using “high velocity blades of air to remove water from the user’s hands under heading 8414, HTSUS). The same result prevails here. The instant dryer delivers large volumes of air at relatively low pressure and is used for drying. As such, it squarely falls within the scope of heading 8414, HTSUS.
By application of GRI 1, the subject hand dryer is classified under heading 8414, HTSUS, specifically subheading 8414.59.60, HTSUS, which provides for “Air or vacuum pumps, air or other gas compressors and fans …: Other; Other.” The column one, general rate of duty is 2.3 % ad valorem.
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 International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website located at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Myles Harmon, Director
Commercial and Trade Facilitation Division