CLA-2:CO:R:C:G 085421 JMH
Ms. Anne D. Balich
Glaxo Inc.
Five Moore Drive
P.O. Box 13358
Research Triangle Park, NC 27709
RE: Aerosol cans
Dear Ms. Balich:
Your July 24, 1989 letter concerning the classification of
aerosol cans was referred by our New York Office to this office
for a reply.
FACTS:
The articles in question are 12.5 ml aerosol cans of
aluminum/magnesium alloy. The cans are specifically designed
and manufactured for pharmaceutical aerosol products. The bottom
of the cans are concave to withstand aerosol pressure and are
stamped "SHAKE BEFORE USE THIS END UP."
After importation, these items are filled with a drug
solution. A specifically designed valve is then crimped onto the
can. Freon is injected into the can through the valve to propel
the drug solution. Vapor droplets are released when the aerosol
is sprayed.
ISSUE:
Are the aerosol cans classifiable in heading 7612, HTSUSA,
or 7613, HTSUSA, as claimed?
LAW AND ANALYSIS:
General Rule of Interpretation (GRI) 1, HTSUSA, states in
part that "for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes." The headings in dispute are heading 7612
which covers "[a]luminum casks, drums, cans, boxes and similar
containers...for any material (other than compressed or liquefied
-2-
gas) of a capacity not exceeding 300 liters...", and heading 7613
which describes "[a]luminum containers for compressed or
liquefied gas."
Additional U.S. Rule of Interpretation 1 states that the
"controlling use is the principal use." The subject aerosol
can's principal use is to hold and dispense a drug solution.
This liquid pharmaceutical falls under "any material" of heading
7612, and is not a compressed or liquefied gas under heading
7613.
The Explanatory Notes (EN's) to the headings offer guidance
for the proper interpretation of the HTS. See 54 Fed. Reg.
35127, 35128 (August 23, 1989). EN 76.13, covering aluminum
containers for compressed or liquefied gas, refers to EN 73.11
which specifically covers containers used for the "transport or
storage of compressed or liquefied gases (e.g., helium, oxygen,
argon, hydrogen, acetylene, carbon dioxide or butane)." The 12.5
ml aerosol cans are not to be used for "transport or storage" nor
is their principal use for compressed or liquefied gas.
We conclude that the 12.5 ml aluminum/magnesium alloy cans
are not classifiable under heading 7613.
HOLDING:
The 12.5 ml aerosol cans for pharmaceutical use are
classifiable under heading 7612 for "[aluminum...cans...for any
material..." Subheading 7612.90.10.30 is the appropriate
subheading for "[c]ans of a capacity not exceeding 355 ml." The
rate of duty is 5.7%.
Sincerely,
John Durant, Director
Commercial Rulings Division