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HQ 962432




November 17, 1999

CLA-2 RR:CR:GC 962432ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 7612.90.1030

Port Director
U.S. Customs Service
200 East Bay Street
Charleston, SC 29401

RE: Protest 1601-98-100138; Empty aluminum barrier containers; dispensers.

Dear Port Director:

The following is our decision on Protest 1601-98-100138, against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of empty aluminum barrier containers also referred to as dispensers.

FACTS:

The merchandise under protest consists of empty aluminum barrier containers which are cylinders, approximately 1¼ inches in diameter and 7¼ inches long, with a lip at the top. Inside the container is a “pouch” which has had its “open” end crimped into the rim of the container so that a seal has been formed. The closed end of the pouch remains inside the container. Product to be dispensed is pumped into the pouch. The open end of the pouch is then closed by affixing a nozzle which covers both the pouch and container. Propellant, under pressure, is then added from the other end of the container which is then sealed. When the nozzle is pressed, the inner aluminum pouch collapses and product is dispensed without being mixed with the
propellant. The dispensers were entered between February and May 1998 and the entries were liquidated on August 14, 1998, under the provision for aluminum casks, drums, cans, boxes and similar containers ... for any material (other than compressed or liquified gas), of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment; other: of a capacity not exceeding 20 liters: cans of a capacity not exceeding 355 ml in subheading 7612.90.1030, HTSUS. A timely protest under 19 U.S.C. 1514 was received on November 9, 1998. The protestant requested reliquidation of the entry under the provision for mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders, other, other, other in subheading 8424.89.7090, HTSUS.

ISSUE:

What is the classification of an aluminum barrier container?

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). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied in order.

The 1998 HTSUS headings under consideration are as follows:

7612 Aluminum casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material (other than compressed or liquefied gas), of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment:

7612.90 Other:

7612.90.10 Of a capacity not exceeding 20 liters.

7612.90.1030 Cans of a capacity not exceeding 355 ml.

8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:

8424.89 Other:

8424.89.70 Other:

8424.89.7090 Other.

8424.90 Parts:

8424.90.80 Other.

8424.90.8085 Other.

It is an established rule that merchandise is classified in the condition in which it is imported. The article under protest is a highly specialized aluminum container which will be used to hold high viscosity products such as RTV silicone, pharmaceutical gels and hair coloring dyes. The protestant contends that the article should be classified in subheading 8424.89.7090, HTSUS, as a mechanical appliance for projecting, dispersing or spraying liquids or powders.

It its condition as imported, the article is not a complete mechanical appliance, and thus cannot be classified in subheading 8424.89.7090, HTSUS. We considered whether the article might be classified in subheading 8424.90.8085, HTSUS, as a part of a mechanical appliance for projecting, dispersing or spraying liquids or powders. However, to be considered in this subheading, the product disbursed by the mechanical appliance must be either a liquid or powder. This article is designed to hold and expel gels and other high viscosity materials. The Random House Dictionary of the English Language (1973) defines a gel as “a semirigid colloidal dispersion of a solid with a liquid or gas, as jelly, glue, etc.” When they are released from the container, gels do not disperse as a spray, but rather cling together, forming a semi-solid mass. Thus, because the article is not intended to project, dispense or spray a liquid or powder, it is not described by heading 8424 and thus cannot be a part of an appliance of heading 8424.

Heading 7612, HTSUS, which provides for aluminum casks, drums, cans, boxes and similar containers is an eo nomine provision which describes the article being classified. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 76.12 covers “Aluminum casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material ...”. This EN states that “[t]he heading also includes rigid tubular containers (e.g., for pharmaceutical products such as pills or tablets), and collapsible tubular containers for creams, toothpastes, etc.” The article being classified contains all the elements included in the EN. It is a rigid tubular container, as well as a collapsible one for substances similar to creams or toothpastes. Accordingly, the aluminum barrier container is classifiable in subheading 7612.90.1030, HTSUS, which provides for aluminum casks, drums, cans, boxes and similar containers ... for any material (other than compressed or liquified gas), of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment; other: of a capacity not exceeding 20 liters: cans of a capacity not exceeding 355 ml. This determination is consistent with NY 886712, issued June 18, 1993, in which Customs classified a container with a similar “advanced barrier system” containing a plastic laminated aluminum pouch inside an aluminum can that dispensed product without the mixing of product and propellant in heading 7612.90.10, HTSUS. While that ruling referred to the product as being an “aerosol” can, the description of its operation (“without releasing propellant into the environment”) indicates that the product is similar to the protestant’s.

HOLDING:

The aluminum barrier containers are classified in subheading 7612.90.1030, HTSUS, which provides for aluminum casks, drums, cans, boxes and similar containers ... for any material (other than compressed or liquified gas), of a capacity not exceeding 300 liters, whether or not lined or heat insulated, but not fitted with mechanical or thermal equipment; other: of a capacity not exceeding 20 liters: cans of a capacity not exceeding 355 ml.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to 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, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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