HQ 0088500 - Cosmetic pumps; mounts for toilet sprays; pumps for liquids; liquid elevators; mechanical appliances for projecting, dispersing or spraying liquids or powders; machines and mechanical appliances having individual functions, not specified or included elsewhere; scent sprays and other toilet sprays liquids; gels; emulsions; project; disperse; spray - United States International Trade Commision Rulings

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HQ 088500

April 4, 1991

CLA-2 CO:R:C:M 088500 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.89.00, 9616.10.00

M. Seredinsky
Import Manager
SCAC Transport (USA), Inc.
Building 75 North Hangar Road
JFK International Airport
Jamaica, NY 11430

RE: Cosmetic pumps; mounts for toilet sprays; pumps for liquids; liquid elevators; mechanical appliances for projecting, dispersing or spraying liquids or powders; machines and mechanical appliances having individual functions, not specified or included elsewhere; scent sprays and other toilet sprays liquids; gels; emulsions; project; disperse; spray

Dear Mr. Seredinsky:

Your November 27, 1990, request for a classification ruling, on behalf of Valois of America, for certain cosmetic pumps has been referred to this office for a reply.

FACTS:

The articles in question are pumps to be incorporated onto bottles and tubes to dispense cosmetic and medicinal preparations. You state that the pumps act as "liquid elevators" to bring the liquid to the top of the bottle or tube and to then dispense the liquid to the hand or body in a measured quantity. The pumps are capable of dispensing lotion-like materials or may spray perfumes or medications.

The pumps have three main components: a long plastic feed tube, a spring-loaded piston pump, and an actuator/spray head. The long plastic feed tube extends into the reservoir, the pump sends the solution up the tube and the actuator/spray head directs the spray or dispersement. From the samples presented, it is clear that the pumps can vary in size and design despite the fact that their constructions are similar.

Two series of pumps are requested to be classified. The first, the VP series, includes crimp-on and screw-on pumps. The VP models are designed for spraying both alcohol solutions (extracts, deodorants, perfumes) and aqueous solutions (pharmaceutical products). The second series is the "Piston System SP 30." The SP 30 is similar to the VP series but is used for dispensing cosmetic gels and emulsions. Because of the differences between the two types of pumps, the VP series and the SP 30 series will be discussed separately.

ISSUE:

Issue 1: Whether the VP series' pumps are classified under heading 8413, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as "Pumps for liquids, whether or not fitted with a measuring device; liquid elevators...", under heading 8424, HTSUSA, as "Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...", or under heading 9616, HTSUSA, as "Scent sprayers and similar toilet sprayers, and mounts and heads therefor..."

Issue 2: Whether the Piston System SP 30 pumps are classified under heading 8413, as "Pumps for liquids, whether or not fitted with a measuring device; liquid elevators...", under heading 8424, HTSUSA, as "Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...", or under heading 9616, HTSUSA, as "Scent sprayers and similar toilet sprayers, and mounts and heads therefor..."

LAW AND ANALYSIS:

Issue 1: Whether the VP series' pumps are classified under heading 8413, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as "Pumps for liquids, whether or not fitted with a measuring device; liquid elevators...", under heading 8424, HTSUSA, as "Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...", or under heading 9616, HTSUSA, as "Scent sprayers and similar toilet sprayers, and mounts and heads therefor..."

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). 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 and...according ..to the following provisions." The three headings in contention are headings 8413, 8424, and 9616, HTSUSA. These headings describe the following:

8413 Pumps for liquids, whether or not fitted with a measuring device; liquid elevators...

8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...

9616 Scent sprayers and similar toilet sprayers, and mounts and heads therefor...

Since goods are first classified by the terms of the headings it is important to understand what the headings encompass. The Explanatory Notes of the HTSUSA provide an explanation of the terms of the HTSUSA. Although they are not dispositive, the Explanatory Notes are to be looked to for the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Explanatory Note 84.13, Harmonized Commodity Description and Coding System ("HCDCS") details what heading 8413 is meant to cover. The note states the following:

This heading covers most machines and appliances for raising or otherwise continuously displacing volumes of liquid...whether they are operated by hand or by any kind of power unit, integral or otherwise... Vol. 3 HCDCS p. 1158. (emphasis added)

Heading 8413 includes reciprocating positive displacement pumps, rotary positive displacement pumps, centrifugal pumps, and liquid elevators.

Heading 8413 describes pumps that are larger and used in an industrial or similar activity. A primary characteristic of these pumps is that they are used for continuously displacing volumes of liquid. The pumps in question are not for continually spraying or dispensing their reservoirs' contents. The cosmetic pumps in question are not of the same class or kind as the pumps for liquids described in heading 8413. Additionally, you state the pumps in question are "liquid elevators." However, the liquid elevators included in heading 8413 are those which use chains, buckets, scoops, elevating wheels or endless bands of textile metal. The subject pumps are not "liquid elevators" as the term is used within the tariff. Thus, the pumps do not meet the terms of heading 8413.

Secondly, Explanatory Note 84.24, HCDCS, indicates what was meant in heading 8424 by "[m]echanical appliances (whether or not hand-operated) for projecting, dispersing or spraying liquids or powders..." The Explanatory Note states the following:

This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials...in the form of a jet, a dispersion (whether or not in drips) or a spray. Vol. 3, HCDCS, p. 1188. (emphasis added)

This heading includes "such appliances, with or without integral reservoirs, of the type operated by hand (including simple piston pump sprays) or by foot pedal..." Explanatory Note 84.24(D), Vol. 3 HCDCS p. 1189. The appliances covered by heading 8424 either "project", "disperse", or "spray" liquids or solids. The common meaning of a term is generally afforded deference when determining its proper interpretation for tariff purposes. Toyota Motor Sales (USA), Inc. v. United States , 7 CIT 178, 182, 585 F. Supp. 649, 653 (1984), aff'd, 753 F.2d 1061 (Fed. Cir. 1985); see Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Dictionaries and other lexicographic authorities may be utilized to determine a term's common meaning. Mast Indus., Inc. v. United States, 9 CIT 549 (1985), aff'd, 786 F.2d 1144 (Fed. Cir. 1986). "Project", "disperse" and "spray" are defined as follows:

Project: 1. To thrust outward or forward. 2. To throw forward: HURL... Webster's II New Riverside University Dictionary, pp. 940 (1984).

Disperse: 1. To break up and scatter in various directions. 2. To cause to vanish or disappear : DISPEL. 3. To disseminate (e.g., knowledge). to move or scatter in different directions. Webster's II New Riverside University Dictionary, pp. 388 (1984).

Spray: 1. Liquid, as water, moving in a mass of dispersed droplets. 2. a. A fine jet of liquid discharged from a pressurized container...--vt. 1. To disperse (a liquid) in a mass of or jet of droplets. 2. To move in the form of a spray. Webster's II New Riverside University Dictionary, pp. 1125 (1984).

The pumps of the VP series definitely thrust the liquid contents of their reservoirs forward so to "project", and the pumps discharge a mass or a jet of droplets from the container, so to "spray". Additionally, the pumps scatter a liquid in different directions, so to "disperse". Although the different directions of the dispersion may be in one small area or radius, nevertheless, the pumps dispense liquid to different directions
within this radius. The VP series pumps at least project, disperse and spray within the common meanings of the terms. Since the terms "disperse", "project" and "spray" are listed in the alternative in heading 8424, only one must be met. In this instance, all of the terms are met. Heading 8424 describes the VP series pumps. Thus, the pumps are described in heading 8424.

Finally, the Explanatory Notes must be examined to determine what is included in heading 9616. Explanatory Note 96.16, HCDCS, states that heading 9616 covers scent, brilliantine and similar toilet sprays, the mounts for toilet sprays, and the head-pieces for toilet sprays. Explanatory Note 96.16, Vol. 4, HCDCS, p. 1612. The note defines a "mount" as "the head (with its spray- forming mechanism) and a pneumatic pressure bulb (sometimes in a textile net) or a piston device." As stated previously, the term "spray" indicates the dispersal of a liquid in a mass or jet of droplets.

The subject articles consist of a head, which includes a spray forming mechanism, and a piston device that will disperse liquids in a spray form. The pumps are in mounts as defined by Explanatory Note 96.16. Toilet sprays are those used for personal hygiene and personal health care. Deodorants, perfumes and pharmaceutical products are used for personal hygiene and health care. The subject pumps are in actuality mounts for toilet sprays. Mounts for toilet sprays are specifically provided for within the terms of heading 9616. Thus, the VP series' pumps are also described within heading 9616.

The VP models, which are able to dispense both alcohol and aqueous solutions, are classifiable in both headings 8424 and 9616. The VP pumps are capable of several uses. Additional U.S. Rule of Interpretation 1(a), HTSUSA, states that when a tariff classification is controlled by use, the controlling use is the principal use. Before a determination may be made regarding the classification of the models, it must be decided which use is the VP models' principal use.

It is the opinion of this office that the dispersement of alcohol solutions is the principal use of the VP models. Perfumes, extracts, deodorants, and other cosmetic products are more commonly used in crimp-on and screw-on spray dispensers than pharmaceutical products. A walk through the aisles of any pharmacy indicates the large amount of cosmetic products marketed to consumers in crimp-on and screw-on spray dispensers of the class or kind of those in question, as compared to the amount of products in crimp-on and screw-on spray dispensers for pharmaceutical applications. Thus, the principal use of the VP models is for the dispersement of cosmetic preparations.

The subject pump's principal use, the distribution of cosmetic solutions, is described by two headings, headings 8424 and 9616. When a good is classifiable by two or more headings GRI 3, HTSUSA, must be utilized. GRI 3(a), HTSUSA, states that the heading which most specifically describes the article is the preferred article. It is the opinion of this office that heading 9616 specifically describes the cosmetic pumps in question. Heading 9616 specifically provides for "toilet sprayers, and mounts and heads thereof..." The articles in question are mounts of toilet sprayers. Such a specific provision, an eo nomine provision, takes precedence over a more general provision such as "mechanical appliances for spraying liquids..." In accordance with GRI 1 and 3(a), and Additional U.S. Rule of Interpretation 1(a), the proper classification for the VP mounts is subheading 9616.10.00, HTSUSA, as "...scent sprayers and similar toilet sprayers, and mounts and heads therefor..."

Issue 2: Whether the Piston System SP 30 pumps are classified under heading 8413, as "Pumps for liquids, whether or not fitted with a measuring device; liquid elevators...", under heading 8424, HTSUSA, as "Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...", or under heading 9616, HTSUSA, as "Scent sprayers and similar toilet sprayers, and mounts and heads therefor..."

As stated in the above analysis, classification is determined first by the terms of the headings and the chapter and section notes, and then by the remaining GRIs taken in sequential order. The headings in contention for the classification of the SP 30 pumps are heading 8413, heading 8424, and heading 9616. These headings describe the following:

8413 Pumps for liquids, whether or not fitted with a measuring device; liquid elevators...

8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...

9616 Scent sprayers and similar toilet sprayers, and mounts and heads therefor...

The SP 30 was designed to distribute gels and emulsions. The literature for the SP 30 system states that "the system was developed in order to fill and dispense new cosmetic products..." Thus, the SP 30 mounts are designed solely for use in the dispensing of cosmetic preparations.

As stated in the above analysis, heading 8413 does not describe the VP series pumps, nor does it describe the SP 30 pumps. The SP 30 pumps are not of the same class of kind of pumps as the industrial and similar pumps which continuously displace volumes of liquids which are provided for in heading 8413.

The VP series pumps, which also distribute cosmetic preparations, were classified under heading 9616. However, heading 9616 describes "spraying" which indicates a liquid. An emulsion is a very thick liquid, "a suspension of globules of one liquid in a second liquid with which the first will not mix." Webster's II New Riverside University Dictionary, p. 429 (1984) A gel is a "semi-solid material." Webster's II New Riverside University Dictionary, p. 523 (1984). The distribution of a semi-sold material or a thick liquid is not the movement of a mass of dispersed droplets, nor is such a distribution the discharge of a fine jet of liquid. The pumping of a gel or emulsion is not similar to the "spraying" of an alcohol or aqueous solution as described previously. It is the opinion of this office that a gel or emulsion dispenser is not a scent spray or similar toilet spray as described by heading 9616.

The other alternative for the VP Series, heading 8424, must also be examined. Explanatory Note 84.24 establishes that heading 8424 covers mechanical appliances which "project", "disperse" or "spray" steam, liquids and solids -- all forms of substances. This would include solids, liquids and those substances between the two. A gel or emulsion would seem to be between a solid, such as a powder, and a liquid, such as an aqueous or alcohol solution. Whether such an in-between substance may be projected, dispensed or sprayed becomes the focus of this analysis. It has been determined in the discussion of heading 9616 that a gel or emulsion cannot be "sprayed." Consequently, the definitions of "project" and "disperse" must be revisited.

Project: 1. To thrust outward or forward. 2. To throw forward: HURL... Webster's II New Riverside University Dictionary, pp. 940 (1984).

Disperse: 1. To break up and scatter in various directions. 2. To cause to vanish or disappear : DISPEL. 3. To disseminate (e.g., knowledge). to move or scatter in different directions. Webster's II New Riverside University Dictionary, pp. 388 (1984).

The SP 30 pumps bring a gel or emulsion up and out of the inside of the container. The pumps thrust the gel or emulsion outward or forward. Thus, the SP 30 pumps project the gel or emulsion. The SP 30 pumps do not break up and scatter the gel or emulsion in various directions within the common meaning of the term "disperse." However, Explanatory Note 84.24 states that a "dispersion" may occur "whether or not in drips..." See HCDCS, Vol. 3, p. 1188. The SP 30 release a large drip of a gel or emulsion. The Explanatory Notes indicate that a drip is to be included within the meaning of the term "disperse." Thus, although the SP 30 pumps do not "disperse" the gel or emulsion within the common meaning of the term, they do "disperse" within the broader meaning supplied by the Explanatory Note.

As stated previously, all that is required to meet the terms of heading 8424 is that one of the terms "project", "disperse" or "spray" must be met. In this instance, two of the terms are met. Thus, heading 8424 describes the SP 30 pumps. The SP 30 pumps project and disperse the gel or emulsion contained the pumps' reservoirs. These pumps are described by heading 8424. In accordance with GRI 1, the proper classification for the SP 30 pumps is subheading 8424.89.00, HTSUSA, as "Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...Other appliances... Other..."

HOLDING:

The cosmetic pumps in question incorporate an actuator/spray head, a feeder tube, and a spring-loaded piston pump. The long plastic feed tube extends into the reservoir, the pump sends the solution up the tube and the actuator/spray head directs the spray or dispersement.

The pumps of the VP series are to be used for both cosmetic and pharmaceutical purposes for the dispensing of both alcohol and aqueous solutions. The VP series mounts' principal use, in accord with Additional U.S. Rule of Interpretation 1(a), is for the dispersement of cosmetic preparations. The mounts of the VP series are similar sprays to scent sprays as described by heading 9616. In accordance with GRI 1 and GRI 3(a), the proper classification for the mounts is subheading 9616.10.00, HTSUSA, as "...scent sprayers and similar toilet sprayers, and mounts and heads therefor..."

The Piston System SP 30 mounts are solely used to dispense cosmetic products in the forms of gels and emulsions. The dispensing of a gel or emulsion by the SP 30 pumps is not a "spray" within the common meaning of the term. The SP 30 pumps are not scent sprays or similar toilet sprays described by heading 9616. The SP 30 pumps project and disperse the gel or emulsion. Such a projection or dispersion is covered by the terms of heading 8424. In accordance with GRI 1, the appropriate classification of the SP 30 mounts is subheading 8424.89.00, HTSUSA, as "Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders...Other appliances... Other..."

Sincerely,

John Durant, Director
Commercial Rulings Division

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