CLA-2 CO:R:C:M 957555 DWS
Mr. Jeff Miller
Amrep, Inc.
990 Industrial Park Drive
Marietta, GA 30062
RE: Revocation of NY 804604; Aerosol Dispenser; Explanatory
Note 85.01(I)(A); Electric Motors; HQs 950834 and 952500;
NY 882294; 8479.89.65
Dear Mr. Miller:
This is in reference to NY 804604, issued to you on December 15, 1994, by the Area Director
of Customs, New York Seaport, concerning the classification of an aerosol dispenser under the
Harmonized Tariff Schedule of the United States (HTSUS). In the course of ruling on similar
merchandise, we have determined that the holding in NY 804604 is incorrect.
FACTS:
The merchandise consists 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 the 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 subheadings under consideration are as follows:
8479.89.65: [m]achines and mechanical appliances having
individual functions, not specified or
included elsewhere in this chapter; parts
thereof: [o]ther machines and mechanical
appliances: [o]ther:
The 1995 general, column one rate of duty for goods classifiable under this provision
is 3.9 percent ad valorem.
We note that the 1994 rate was 4.2 percent ad valorem.
8501.10.40: [e]lectric motors and generators (excluding
generating sets): [m]otors of an output not
exceeding 37.5 W: [o]ther.
The 1995 general, column one rate of duty for goods classifiable under this provision
is 6.2 percent ad valorem.
We note that the 1994 rate was 6.6 ad valorem.
ISSUE:
Whether the aerosol dispenser is classifiable under subheading 8479.89.65, HTSUS, as an
other mechanical function having an individual function, or under subheading 8501.10.40,
HTSUS, as an other electric motor of an output not exceeding
37.5 W.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of
Interpretation (GRI's).
GRI 1 provides that classification is determined according to the terms of the headings and any
relative section or chapter notes.
In NY 804604, it was held that the aerosol dispenser was classifiable under subheading
8479.89.65, HTSUS. However, before we can consider whether the merchandise is classifiable
under that provision, we must first decide whether the dispenser is described under subheading
8501.10.40, HTSUS.
In understanding the language of the HTSUS, the Harmonized Commodity Description and
Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not
dispositive, are to be used to determine the proper interpretation of the HTSUS. See T.D. 89-80,
54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 85.01(I)(A) (p. 1334)
states that:
[m]otors remain classified here even when they are equipped
with pulleys, with gears or gear boxes, or with a flexible
shaft for operating hand tools. The heading includes
"outboard motors" for the propulsion of boats, in the form
of a unit comprising an electric motor, shaft, propeller and
a rudder.
If the motorized gear system was imported without the other components in the dispenser, it
would be classifiable under subheading 8501.10.40, as the presence of the gear system would not
change the classification of the motor. See HQ 952500, dated October 16, 1992. However, we
must now determine whether the dispenser, containing the motorized gear system and the lever,
control board, and timer setting, is described under subheading 8501.10.40, HTSUS.
In HQ 950834, dated March 6, 1992, it was stated that:
[t]he Explanatory Notes and the rulings interpreting heading
8501, HTSUS, make it clear that electric motors equipped with additional components,
remain classifiable in this
heading, even if those other components are "quite substantial". However, it is
equally clear that heading
8501, HTSUS, does not encompass every assembly which includes an electric motor.
When confronted with an assembly incorporating a motor which includes additional
components other than those listed in Explanatory Note 85.01, HTSUS, the rulings
described above provide the following guidelines--an electric motor is classifiable
under heading 8501, HTSUS, even when imported with additional components (other
than those listed in Explanatory Note 85.01) if:
(1) those additional components complement the function of
the motor [HQ 083955];
(2) those additional components are devices which motors are
commonly equipped [HQ 087909];
(3) those additional components serve merely to transmit the power the motors
produce [HQ 950557].
It is our position that the dispenser is described under subheading 8501.10.40, HTSUS, as an
other electric motor. The primary function of the dispenser is to initiate spraying action. The component which performs this function is the motorized gear system. The timer setting and
the control board perform functions complementary, or auxiliary, to the motorized gear system.
The timer setting determines when the motorized gear system will operate, and the control board
merely alerts a user when the system is not operating properly or effectively. The lever serves to
transmit the power the motorized gear system produces by pressing down on the aerosol can's
spray valve. See NY 882294, dated April 22, 1993, which held a similar automatic aerosol
dispenser to be classifiable under subheading 8501.10.40, HTSUS.
In part, GRI 3(a) states that:
[t]he heading which provides the most specific description
shall be preferred to headings providing a more general description. . .
We find that heading 8501, HTSUS, is more specific than the general provision of heading
8479, HTSUS. Goods are only classifiable under heading 8479, HTSUS, when they are not
specified elsewhere under chapter 84, HTSUS; whereas heading 8501, HTSUS, specifically
names electric motors. Therefore, the aerosol dispenser is classifiable under subheading
8504.10.40, HTSUS.
HOLDING:
The aerosol dispenser is classifiable under subheading 8501.10.40, HTSUS, as an other
electric motor of an output not exceeding 37.5 W.
EFFECT ON OTHER RULINGS:
NY 804604 is revoked pursuant to 19 CFR 177.9(d)(1). This revocation will not be applied
retroactively to NY 804604 [19 CFR 177.9(d)(2)] and will not, therefore, affect past transactions
under that ruling. However, for the purposes of future transactions in merchandise of this type,
NY 804604 will not be valid precedent. We recognize that pending transactions may be adversely
affected by this revocation, in that current contracts for importations arriving at a port subsequent
to this decision will be classified pursuant to it. If such a situation arises, you may apply for relief
from the binding effects of this decision as may be warranted by the circumstances. Please be advised that in some instances involving import restraints, such relief may require separate
approvals from other government agencies.
Sincerely,
John Durant, Director
Commercial Rulings Division