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HQ W968211




February 6, 2007

CLA-2 RR:CTF:TCM W968211 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.90.9080

Mr. Arnold Zlotnik
Air-Scent International
215 8th Street
Braddock, PA 15104

RE: Automatic Aerosol Dispenser; NY 882294 Revoked

Dear Mr. Zlotnik:

In NY 882294, which the Area Director, New York Seaport (now Director, National Commodity Specialist Division, U.S. Customs and Border Protection (CBP)), New York, issued to you on April 22, 1993, an automatic aerosol dispenser was found to be classifiable as an electric motor of an output not exceeding 37.5 watts, in subheading 8501.10.4060, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reconsidered this classification and now believe that 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 NY 882294 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:

NY 882294 described an automatic aerosol dispenser that may be wall-mounted, having a plastic housing and containing a battery-operated motor. To activate the device, the cover is removed, and an aerosol can, containing air freshener or insecticide is placed in the unit. At preset intervals, the motor moves, and its shaft presses down on the aerosol button, spraying the contents. The motor operates at 0.3 watts.

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 automatic aerosol dispenser is an electric motor of heading 8501 or part of a mechanical appliance for projecting, dispersing or spraying liquids or powders.

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. CBP 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).

The 8501 ENs 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.

The classification expressed in NY 882294 was based on the belief that the components of the aerosol dispenser complemented the function of the motor. We now believe that this is incorrect. In devices of this kind, when the on/off switch is turned on, the motor presses a shaft down on the aerosol spray valve thus initiating the spraying action. Even though the motor and shaft may be involved in the sequence, it is the on/off switch that actually begins the sequence. Therefore, while the shaft may complement the function of the motor there is no basis to conclude that the other components of the dispenser do likewise.

For these reasons, we conclude that the automatic aerosol dispenser is not a good included in heading 8501 under Section XVI, Note 2(a), HTSUS. However, in respect of Note 2(b), 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 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 in this case leads to the conclusion that it satisfies a specific and integral need in the operation of a complete aerosol dispenser. Furthermore, its unique design leads us to 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 aerosol dispenser, as described, is provided for in heading 8424. It is classifiable in subheading 8424.90.9080, HTSUSA, as other parts of mechanical appliances for projecting, dispersing, or spraying liquids or powders.

EFFECT ON OTHER RULINGS:

NY 882294, dated April 22, 1993, 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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