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HQ W968210




February 6, 2007

CLA-2 RR:CTF:TCM W968210 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.90.9080

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

RE: Aerosol Dispenser; HQ 957555 Revoked

Dear Mr. Miller:

In HQ 957555, issued to you on January 30, 1995, an aerosol dispenser, as hereafter described, was found to be classifiable as electric motors and generators of an output of under 18.65 W, in subheading 8501.10.40, Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered this classification and now believe it is incorrect.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 957555 was published on December 13, 2006, in the Customs Bulletin, Volume 40, Number 51. Two comments were received, one opposing the proposal, and one suggesting the revocation of a third ruling.

FACTS:

The merchandise was described in HQ 957555 as consisting 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 a liquid 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 2007 HTSUS provisions under consideration are as follows:

Mechanical appliancesfor projecting, dispersing or spraying liquids or powders;; parts thereof:

Other appliances:

8424.89.00 Other

8424.90 Parts:

8424.90.90 Other

Electric motors and generators (excluding generating sets):

8501.10 Motors of an output not exceeding 37.5 W: Of under 18.65 W:

8501.10.40 Other

ISSUE:

Whether the aerosol dispenser, as described, imported without the aerosol can and batteries, constitutes an electric motor of heading 8501 or parts of mechanical spraying appliances of heading 8424.

LAW AND ANALYSIS:

Under General Rule of Interpretation (GRI) 1, Harmonized Tariff Schedule of the United States (HTSUS), goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding and, therefore not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are thus useful in ascertaining the classification of merchandise under the Harmonized System. U.S. Customs and Border Protection believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Pursuant to Section XVI, Note 2, HTSUS, parts which are goods included in any of the headings of chapter 84 or 85 are in all cases to be classified in their respective headings. See Note 2(a). 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 are to be classified with the machines of that kind. See Note 2(b). Nidec Corporation v. United States, 861 F. Supp. 136, aff’d. 68 F. 3d 1333 (CAFC 1995). Thus, if the aerosol dispenser is found to qualify as an electric motor for tariff purposes, Note 2(a) requires that it be classified in heading 8501. If not, Note 2(b) requires that the aerosol dispenser be classified with the machine or machines with which it is solely or principally used.

The classification in HQ 957555 was predicated on the 8501 ENs which state, in part, that motors remain classified [in heading 8501] even when they are equipped with pulleys, with gears or gear boxes, or with a flexible shaft for operating hand tools. The ENs continue by including in heading 8501 “outboard motors” for the propulsion of boats, in the form of a unit comprising an electric motor, shaft, propeller and a rudder. Based on these ENs, heading 8501, HTSUS, has been broadly interpreted. For example, HQ 083955, dated July 10, 1989, stated that electric motors imported with additional components other than those listed in the 8501 ENs were intended to remain classifiable in heading 8501 provided the additional components complement the function of the motor. See also HQ 950834, dated March 6, 1992, which cites HQ 083955 with approval.

HQ 957555 stated that the primary function of the aerosol dispenser was to initiate spraying action and that the component which performs this function is the motorized gear system. The remaining components were said to perform functions complementary or auxiliary to the motorized gear system. We now believe that this analysis is incorrect. The facts indicate that, when turned on, the motorized gear and lever system begins to rotate, pressing down the lever on the aerosol spray valve and initiates the spraying action. In fact, even though the motorized gear and lever system may be involved in the sequence, it is the on/off switch that actually initiates the sequence. Therefore, while the gears and lever may complement the function of the motor there is no basis to conclude that the control board and incorporated timer setting does likewise. Noting Section XVI, Note 2(a), HTSUS, we conclude that the automatic battery-operated aerosol dispenser is not a good included in heading 8501.

A good may qualify as a “part” for tariff purposes if it satisfies a specific and integral need in the operation of the device with which it is used. Mitsubishi Int’l v. United States, 17 CIT 871, 829 F. Supp. 1387 (1993). A complete aerosol dispenser consisting of the described components, plus the actual aerosol spray can, would meet the terms of heading 8424 as a mechanical appliance for projecting, dispersing or spraying liquids or powders. The dispenser’s function and manner of operation leads to the conclusion that it satisfies a specific and integral need in the operation of a complete aerosol can dispenser. Its unique design leads us to further conclude that it is solely or principally used with mechanical dispersing or spraying appliances of heading 8424, under the authority of Section XVI, Note 2(b), HTSUS.

In light of the foregoing analysis, one commenter suggested that another ruling, NY J82527, dated May 2, 2003, pertaining to a dispenser which aerosolizes and propels particles of liquid fragrance, imported without the liquid fragrance, should also be revoked, and the classification of that article be corrected from subheading 8424.89.70. HTSUS (8424.89.00 in the 2007 HTSUS) to subheading 8424.90.90, HTSUS. The commenter suggests that the dispenser satisfies a specific and integral need in the operation of the dispenser complete with the container of liquid. However, the aerosol dispenser satisfies a specific and integral need in the operation by initiating the spraying action although the unit itself does not spray. To the contrary, the dispenser of the liquid fragrance initiates the spraying action as well as performs the actual spraying, thereby performing the entire spraying operation as opposed to simply satisfying a specific and integral need in the spraying action. This latter article is a complete apparatus with the function of a mechanical appliance for projecting, dispersing, or spraying liquids or powders and is not a part of such an article. We do not agree that the analysis above compels the revocation of rulings pertaining to articles such as the dispenser in NY J82527 which aerosolizes and propels particles of liquid fragrance.

The comment opposing the revocation supported classification of the aerosol dispensers as other mechanical appliances for projecting, dispersing, or spraying liquids or powders, under subheading 8424.89.00, HTSUS, under the authority of GRI 2(a). The commenter is of the opinion that the dispensers are incomplete or unfinished without the aerosol can and batteries, and as such should not be classified as parts. We do not agree and have found that the dispensers are complete articles as imported, and can be classified under GRI 1 as parts, without resort to GRI 2. The dispenser itself does not have the ability itself to project, disperse or spray liquids or powders, and as such does not have the essential character of a good of subheading 8424.89.00, HTSUS.

HOLDING:

Under the authority of GRI 1 and Section XVI, Note 2(b), HTSUS, the automatic metered aerosol dispenser, as described, is provided for in heading 8424. It is classifiable in subheading 8424.90.9080, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other parts of mechanical appliances for projecting, dispersing, or spraying liquids or powders.

EFFECT ON OTHER RULINGS:

HQ 957555, dated January 30, 1995, is revoked. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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