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HQ 966477




August 26, 2004

CLA-2 RR:CR:TE 966477 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 7419.99.5010; 3926.90.9880; 4016.93.5050

Port Director
Customs and Border Protection
Port of Newark
C/O Residual Liquidation and Protest Branch 1100 Raymond Boulevard
Newark, NJ 07102

RE: Protest 4601-03-200291/1001-01-100333; Faucet Aerators: Parts: Accessories

Dear Port Director:

This is our decision on protest 4601-03-200291/1001-01-100333 filed by counsel on behalf of NEOPERL Company, Inc., against your action regarding the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of parts for faucet aerators.

FACTS:

The merchandise at issue was liquidated on January 5, 2001, and a protest with application for further review was filed on January 24, 2001. The protest was denied on December 13, 2002, but he denial was set aside under the authority of 19 U.S.C. 1515(d) at the request of the counsel for the protestant by letter, dated February 4, 2003. Under 19 U.S.C. 1515(d). Customs and Border Protection (CBP) "may on its own initiative, or pursuant to a written request by the protesting party filed with the appropriate port director within 90 days after the date of the protest denial, void the denial of the protest." After setting aside the denial of the protest, the port granted the request for further review and forwarded the protest package to this office for consideration.

The articles involve include dome screens, honeycombs, and inserts that are all plastic pieces that snap together to form the aerator chamber of a faucet aerator. These pieces than fit into the metal aerator housing, also at issue. In the "Memorandum in Support of the Protest," the protestant argues the port erred in classifying and liquidating the merchandise at issue in subheading 3926.90.9880, HTSUSA, as other articles of plastics (the plastic dome screens, honeycombs and inserts) and subheading 8481.90.1000, HTSUSA, as "Taps, cocks, valves and similar appliances, for thermostatically controlled valves; parts thereof: Parts" Of hand operated and check appliances: Of copper" (the metal housing). It is our understanding that the merchandise was entered classified under these provisions and subject to a no change liquidation.

The complete aerator unit (dome screens, honeycombs, inserts, and metal housing), when put together is screwed onto the end of a faucet spout. The protestant claims that the aerator unit is used to regulate water flow from a faucet by mixing it with air. In a communication dated June 23, 2000, protestant advises that according to the Merriam Webster Dictionary, ninth edition a "device for regulating the flow of liquid" is a cock. It is his contention that as the aerator regulates the flow of water is it by definition a cock. He goes on to assert that since the aerator is not a hand-operated appliance it should be classified in subheading 8481.90.9050, HTSUSA. The protestant argues that all the imported items are parts of an aerator. They are made specifically to be used with the aerator and cannot be used for any other purpose. He goes on to state that the honeycomb, although made of plastic, is excluded from Chapter 39 by headnote 2(p) since it is part of the aerator. It is the protestor's contention that the parts, since they are parts of a cock and are not hand operated cock or check appliances, are classified under subheading 8481.90.9080, HTSUSA, which provides for "[t]aps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves, parts thereof, parts, other.

Based on an argument that subheading 8481.90.9080, HTSUSA, and subheading 3926.90.9880, HTSUSA, merit equal consideration in the classification of the parts of the aerator, the protestant argues that by application of General Rule of Interpretation 3(c), all of the parts at issue are classifiable under subheading 8481.90.9080, HTSUSA, as parts of a cock.

ISSUE:

What is the classification under the HTSUS of components for faucet aerators?

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 most 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.

Chapter 84, HTSUS, provides in pertinent part, for machinery and mechanical appliances and accessories of such articles. Heading 8481, HTSUS, provides for "[t]aps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves, and thermostatically controlled valves; parts thereof." In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989).

EN 84.81, states in pertinent part that:

This heading covers taps, cocks, valves, and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow... of fluids.... [t]he appliances regulate the flow by opening or closing an aperture...[t]hey may be operated by hand...

In general, taps, valves, etc., are of base metal or plastics, but those of other materials...are also covered by the heading.

Taps, valves, etc., remain classifiable here even if incorporating other accessory features (e.g., ...short lengths of tubing; short lengths of tubing ending in a shower rose.)

Taps, cocks, valves, etc., remain in this heading even if specialized for use on a particular machine or apparatus...

This heading includes inter alia:

(10) ...hosepipe nozzles and the like, fitted with cocks or with valves for forming a jet or spray.

EN 84.81 states that the "heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or gas." Further, EN 84.81 states that "[t]he appliances regulate the flow by opening or closing an aperture (e.g., gate, disc, ball, plug, needle or diaphragm)."

The protestant provides a definition for "cock" from Merriam Webster’s Dictionary (Ninth edition) as a "device for regulating the flow of a liquid." The protestant then states that an aerator helps regulate the flow of water. The literature submitted states that "aerators introduce air into the water stream to produce a larger and whiter stream soft to the touch and non-splashing." It also claims that the faucet regulators "produce a constant flow regardless of pressure fluctuations." They are described as "[k]ey components in the overall performance of faucets, they control stream straightness, reduce splash and save water."

We disagree that the merchandise before us (the honeycomb, dome screen, housing, and inserts) is classifiable in heading 8481, HTSUS. The EN to heading 84.81 and the definition provided by the dictionary point out that the article must regulate the pressure or flow velocity of the water and that this regulation is done by opening or closing an aperture. An aerator does not have an aperture which is opened or closed. An aerator is simply an article of fixed components that causes air to be introduced into water as it flows from a faucet. It is the faucet, not the aerator which regulates the flow of water.

Further, an aerator is not a "part" of an article which is classifiable in heading 8481, HTSUS. A "part," for tariff purposes, is an integral, constituent component of another article, necessary to the completion of the article with which it is used, and which enables that article to function in the manner for which it was designed. We find that an aerator is an accessory rather than a part of a faucet. See HQ 961652 (January 11,1999). However, an "accessory," for tariff purposes, is generally not necessary to the completion of the article with which it is used. Accessories are of secondary importance, not essential in and of themselves. They must, however, add to the effectiveness of the article they are used with, for example, by making that article more convenient to use or by expanding its range of uses. Id. In this case, despite the fact an aerator can be affixed to a faucet, it is not necessary to a faucet, which is otherwise complete and fully functional. An aerator is not necessary to the completion of a faucet, but it is useful in mixing air with the water flowing from the faucet. However it can be removed from the faucet without compromising the ability of the faucet to provide usable water. Therefore, an aerator is an accessory, not a part, for tariff purposes. See HQ 966561 of October 28, 2003.

CBP has previously found that brass faucet aerators are classified in subheading 7419.99.5010, HTSUSA, as other articles of copper, other:brass plumbing goods not elsewhere specified or included. See NY F84380 of March 15, 2000. Aluminum faucet
aerators were previously classified by CBP in subheading 7616.99.5090, HTSUSA, as other articles of aluminum. See NY E86485 of September 13, 1999.

Since heading 8481, HTSUS, does not encompass aerators, we find that the correct classification of the metal housing component of the aerator, if cooper, is in subheading 7419.99.50, HTSUSA, as "[o]ther articles of copper: [o]ther: [o]ther: [o]ther, [b]rass plumbing goods not elsewhere specified or included."

As we have determined that the aerators at issue are not classifiable in heading 8481, HTSUS, protestant's claim that the plastic components of the aerator are excluded from classification in chapter 39 by operation of Note 2(p), Chapter 39, fails. Note 2(p) excludes articles of section XVI (machines and mechanical or electrical appliances) from classification within chapter 39. As the aerators are not classifiable within section XVI, plastic parts of the aerators are not excluded from classification within chapter 39. The plastic components of the faucet aerators are classifiable in subheading 3926.90.9880, HTSUSA, which provides of other articles of plastics, other.

A rubber washer was included in the sample aerator provided by protestant. It was not described and does not appear to be part of the merchandise at issue. However, if the rubber in the washer meets the chapter 4(a) chapter 40, definition of synthetic rubber, than the washer, when imported separately, is classified in subheading 4016.93.5050, HTSUSA, which provides for "[o]ther articles of vulcanized rubber other than hard rubber: [o]ther: [g]askets, washers and other seals: [o]ther, [o]ther.

HOLDING:

In accordance with the above discussion, the metal housings for faucet aerators are classified in subheading 7419.99.5010, HTSUSA, as other articles of copper, other, other, other, brass plumbing goods not elsewhere specified or included. The applicable general column one rate of duty for goods entered in February of the year 2000 is Free.

The plastic components of the faucet aerators are classifiable in subheading 3926.90.9880, HTSUSA, which provides for, among other things, other articles of plastics, other. The applicable general column one rate of duty for goods entered in February of the year 2000 is 5.3 percent ad valorem.

Although not part of the protest, we will provide the current classification of the washer, when imported separately, which is in subheading 4016.93.5050, HTSUSA, which provides for other articles of vulcanized rubber other than hard rubber: gaskets, washers and other seal: other, other. The applicable general column one rate of duty is 2.5 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated results in a net duty reduction and partial allowance.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 22), 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 of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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