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HQ 085421


September 21, 1989

CLA-2:CO:R:C:G 085421 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7612.90.10

Ms. Anne D. Balich
Glaxo Inc.
Five Moore Drive
P.O. Box 13358
Research Triangle Park, NC 27709

RE: Aerosol cans

Dear Ms. Balich:

Your July 24, 1989 letter concerning the classification of aerosol cans was referred by our New York Office to this office for a reply.

FACTS:

The articles in question are 12.5 ml aerosol cans of aluminum/magnesium alloy. The cans are specifically designed and manufactured for pharmaceutical aerosol products. The bottom of the cans are concave to withstand aerosol pressure and are stamped "SHAKE BEFORE USE THIS END UP."

After importation, these items are filled with a drug solution. A specifically designed valve is then crimped onto the can. Freon is injected into the can through the valve to propel the drug solution. Vapor droplets are released when the aerosol is sprayed.

ISSUE:

Are the aerosol cans classifiable in heading 7612, HTSUSA, or 7613, HTSUSA, as claimed?

LAW AND ANALYSIS:

General Rule of Interpretation (GRI) 1, HTSUSA, 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." The headings in dispute are heading 7612 which covers "[a]luminum casks, drums, cans, boxes and similar containers...for any material (other than compressed or liquefied
gas) of a capacity not exceeding 300 liters...", and heading 7613 which describes "[a]luminum containers for compressed or liquefied gas."

Additional U.S. Rule of Interpretation 1 states that the "controlling use is the principal use." The subject aerosol can's principal use is to hold and dispense a drug solution. This liquid pharmaceutical falls under "any material" of heading 7612, and is not a compressed or liquefied gas under heading 7613.

The Explanatory Notes (EN's) to the headings offer guidance for the proper interpretation of the HTS. See 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 76.13, covering aluminum containers for compressed or liquefied gas, refers to EN 73.11 which specifically covers containers used for the "transport or storage of compressed or liquefied gases (e.g., helium, oxygen, argon, hydrogen, acetylene, carbon dioxide or butane)." The 12.5 ml aerosol cans are not to be used for "transport or storage" nor is their principal use for compressed or liquefied gas.

We conclude that the 12.5 ml aluminum/magnesium alloy cans are not classifiable under heading 7613.

HOLDING:

The 12.5 ml aerosol cans for pharmaceutical use are classifiable under heading 7612 for "[aluminum...cans...for any material..." Subheading 7612.90.10.30 is the appropriate subheading for "[c]ans of a capacity not exceeding 355 ml." The rate of duty is 5.7%.

Sincerely,

John Durant, Director
Commercial Rulings Division

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