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HQ 957555




CLA-2 CO:R:C:M 957555 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8501.10.40

Mr. Jeff Miller
Amrep, Inc.
990 Industrial Park Drive
Marietta, GA 30062

RE: Revocation of NY 804604; Aerosol Dispenser; Explanatory Note 85.01(I)(A); Electric Motors; HQs 950834 and 952500; NY 882294; 8479.89.65

Dear Mr. Miller:

This is in reference to NY 804604, issued to you on December 15, 1994, by the Area Director of Customs, New York Seaport, concerning the classification of an aerosol dispenser under the Harmonized Tariff Schedule of the United States (HTSUS). In the course of ruling on similar merchandise, we have determined that the holding in NY 804604 is incorrect.

FACTS:

The merchandise consists of an automatic metered aerosol dispenser which is a wall-mounted, battery-operated mechanical appliance used to activate an aerosol spray can at timed intervals. The dispenser, which measures approximately 9 inches x 3 1/2 inches x 3 1/2 inches, is comprised of a plastic cabinet with a side-hinged door containing an opening through which the spray is emitted. Inside the cabinet is a battery compartment, a compartment holding a standard aerosol spray can, a motorized gear and lever system, and a control board. The control board features "empty can" and "battery low" warning lights, as well as a timer setting which allows the unit to be set to initiate a spraying action every 7 1/2, 15, and 30 minutes. When the dispenser's switch is turned on, the motorized gear system begins to rotate, pressing down the lever on the aerosol spray valve and initiating the spraying action. The dispenser is imported with two screws, two hollow wall anchors, and decorative color strips used to match the cabinet color with the wall color. The dispenser is imported without the aerosol can and batteries.

The subheadings under consideration are as follows:

8479.89.65: [m]achines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: [o]ther machines and mechanical appliances: [o]ther:

The 1995 general, column one rate of duty for goods classifiable under this provision is 3.9 percent ad valorem.
We note that the 1994 rate was 4.2 percent ad valorem.

8501.10.40: [e]lectric motors and generators (excluding generating sets): [m]otors of an output not exceeding 37.5 W: [o]ther.

The 1995 general, column one rate of duty for goods classifiable under this provision is 6.2 percent ad valorem.
We note that the 1994 rate was 6.6 ad valorem.

ISSUE:

Whether the aerosol dispenser is classifiable under subheading 8479.89.65, HTSUS, as an other mechanical function having an individual function, or under subheading 8501.10.40, HTSUS, as an other electric motor of an output not exceeding 37.5 W.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's).
GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

In NY 804604, it was held that the aerosol dispenser was classifiable under subheading 8479.89.65, HTSUS. However, before we can consider whether the merchandise is classifiable under that provision, we must first decide whether the dispenser is described under subheading 8501.10.40, HTSUS.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 85.01(I)(A) (p. 1334) states that:

[m]otors remain classified here even when they are equipped with pulleys, with gears or gear boxes, or with a flexible shaft for operating hand tools. The heading includes "outboard motors" for the propulsion of boats, in the form of a unit comprising an electric motor, shaft, propeller and a rudder.

If the motorized gear system was imported without the other components in the dispenser, it would be classifiable under subheading 8501.10.40, as the presence of the gear system would not change the classification of the motor. See HQ 952500, dated October 16, 1992. However, we must now determine whether the dispenser, containing the motorized gear system and the lever, control board, and timer setting, is described under subheading 8501.10.40, HTSUS.

In HQ 950834, dated March 6, 1992, it was stated that:

[t]he Explanatory Notes and the rulings interpreting heading 8501, HTSUS, make it clear that electric motors equipped with additional components, remain classifiable in this heading, even if those other components are "quite substantial". However, it is equally clear that heading
8501, HTSUS, does not encompass every assembly which includes an electric motor. When confronted with an assembly incorporating a motor which includes additional components other than those listed in Explanatory Note 85.01, HTSUS, the rulings described above provide the following guidelines--an electric motor is classifiable under heading 8501, HTSUS, even when imported with additional components (other than those listed in Explanatory Note 85.01) if:

(1) those additional components complement the function of the motor [HQ 083955];

(2) those additional components are devices which motors are commonly equipped [HQ 087909];

(3) those additional components serve merely to transmit the power the motors produce [HQ 950557].

It is our position that the dispenser is described under subheading 8501.10.40, HTSUS, as an other electric motor. The primary function of the dispenser is to initiate spraying action. The component which performs this function is the motorized gear system. The timer setting and the control board perform functions complementary, or auxiliary, to the motorized gear system. The timer setting determines when the motorized gear system will operate, and the control board merely alerts a user when the system is not operating properly or effectively. The lever serves to transmit the power the motorized gear system produces by pressing down on the aerosol can's spray valve. See NY 882294, dated April 22, 1993, which held a similar automatic aerosol dispenser to be classifiable under subheading 8501.10.40, HTSUS.

In part, GRI 3(a) states that:

[t]he heading which provides the most specific description shall be preferred to headings providing a more general description. . .

We find that heading 8501, HTSUS, is more specific than the general provision of heading 8479, HTSUS. Goods are only classifiable under heading 8479, HTSUS, when they are not specified elsewhere under chapter 84, HTSUS; whereas heading 8501, HTSUS, specifically names electric motors. Therefore, the aerosol dispenser is classifiable under subheading 8504.10.40, HTSUS.

HOLDING:

The aerosol dispenser is classifiable under subheading 8501.10.40, HTSUS, as an other electric motor of an output not exceeding 37.5 W.

EFFECT ON OTHER RULINGS:

NY 804604 is revoked pursuant to 19 CFR 177.9(d)(1). This revocation will not be applied retroactively to NY 804604 [19 CFR 177.9(d)(2)] and will not, therefore, affect past transactions under that ruling. However, for the purposes of future transactions in merchandise of this type, NY 804604 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may apply for relief from the binding effects of this decision as may be warranted by the circumstances. Please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.

Sincerely,

John Durant, Director
Commercial Rulings Division

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