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HQ 966611





January 7, 2004

CLA-2 RR:CR:GC 966611 AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.90.90

Mr. James H. Lundquist
Pavia & Harcourt LLP
600 Madison Avenue
New York, NY 10022

RE: Revocation of NY I89445; Canister of Le Bozec Rain Repellent

Dear Mr. Lundquist:

This is in reference to your letter, dated June 18, 2003, to the Director of Customs National Commodity Specialist Division, New York, requesting reconsideration of New York Ruling Letter (NY) I89445, issued to Kuehne & Nagel, Inc., on March 6, 2003, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Le Bozec rain repellent. Your letter was forwarded to this office for reply. We have reviewed this ruling and believe it is incorrect. This ruling sets forth the correct classification.

Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of NY I89445 was published on November 5, 2003, in the Customs Bulletin, Volume 37, Number 45. No comments were received in response to this notice.

FACTS:

In NY I89445, Customs classified the merchandise in subheading 3208.90.00, HTSUS, the provision for "Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a nonaqueous medium; solutions as defined in note 4 to this chapter: Other," based on Customs Laboratory report NY20030042, which states, in pertinent part, the following:

Based on the information submitted by the inquirer, the product named Foralkyl 2211 is composed of a mixture of five chemical ingredients delivered in a pressurized can, which is outfitted on the rain repellent system of commercial aircraft.

The most active ingredient is the SF 1706 (fluorinated olefin in C6, a polysiloxane), and functioned [sic] as a coating on the windshield which will remove the water at a certain speed.

The pressurized can is outfitted on the rain repellent system of commercial aircraft. When the visibility is bad under rainy conditions, the pilot pushes a switch that will activate the complete system and spray some fluid on the windshield. The fluid will then remove the water on the windshield and improve the visibility of the pilot.

Based on the submitted chemical composition, the product is a solution specified in headings 3901 to 3913 in volatile organic solvents with the weight of the solvent exceeds [sic] of the weight of the solution.

The rain repellent system on commercial aircraft mentioned in the Laboratory Report consists of the instant pressurized canister of rain repellent, item N. 402-Q80-1, which fits into a repository, and is connected by tubing to a reservoir assembly incorporating a glass reservoir, manometer, and spray head. The system is activated electronically in the cockpit of the aircraft. The system is engineered to withstand extreme temperatures and changes in atmospheric pressure necessary for systems used on aircraft.

ISSUE:

Is a pressurized canister of rain repellent, designed for use in a spray system for aircraft windshields, classified as to its chemical components or as a part of a spray system or as a part of an aircraft?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation (AUSRI). The GRIs and the AUSRI are part of the HTSUS and are to be considered statutory provisions of law.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.

In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The following HTSUS headings are under consideration:

3208 Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in a nonaqueous medium; solutions as defined in note 4 to this chapter:

3208.90.00 Other

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:

8424.90 Parts:

8424.90.90 Other

8803 Parts of goods of heading 8801 or 8802:

8803.30.00 Other parts of airplanes or helicopters

The ENs to heading 8424 state, in pertinent part, the following:

This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray.

Section XVII, note 2(e) states, in pertinent part, the following:

The expression “parts” and “parts and accessories” do not apply to the following articles, whether or not they are identifiable as for the goods of this section: . . . .

Machines or apparatus of headings 8401 to 8479, or parts thereof; . . . .

Section XVI, Note 2 states, in pertinent part, the following:

Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:

(a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;

(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;

In NY I89445, we classified the instant merchandise in heading 3208, HTSUS, as to its chemical composition. The merchandise, however, is not simply a chemical solution. Its canister is as important to the use of the merchandise as is the rain repellent that it contains.

Heading 8803, HTSUS, is explicitly excluded by Section XVII, note 2(e). As described in your submission requesting reconsideration of NY I89445, the canister of rain repellent is part of an elegantly designed precision mechanical appliance for spraying a liquid specifically for use only on civilian airplane windshields. Parts of such spraying systems are described in heading 8424, HTSUS, as parts, and are therefore excluded from headings in Section XVII (e.g., heading 8803) by note 2(e), supra.

Furthermore, classification in heading 8424, HTSUS, is directed by Note 2(b) to Section XVI. As a part of a mechanical appliance for spraying a liquid that is not specified elsewhere as a good of Section XVI, the merchandise is classified with the machine. (Note 2(b) to Section XVI, supra). Lastly, the description of parts of spraying apparatus in EN 84.24 closely fits the instant merchandise.

You believe that HQ 962615, dated September 2, 1999, should govern this matter. In that ruling, we classified a hydraulic fluid reservoir for aircraft in heading 8803, HTSUS, as a part of an airplane. HQ 962615 is distinguishable from this case in that there is no heading other than heading 8803, HTSUS, which describes the hydraulic fluid reservoir.

Therefore, we find that the Le Bozec Aircraft rain repellant canister is classified in subheading 8424.90.90, HTSUS, the provision for: "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: Parts: Other."

HOLDING:

The Le Bozec Aircraft rain repellant canister is classified in subheading 8424.90.90, HTSUS, the provision for: "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: Parts: Other."

EFFECT ON OTHER RULINGS:

NY I89445 is revoked.

In accordance with 19 U.S.C. §1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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