CLA-2 CO:R:C:M 955233 KCC
Arlen T. Epstein, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, New York 10048
RE: Spin Pop; electric motor; gearing; shaft; HRL's 952500,
083955, 087909, 950557, 950834, 087396; 8479.89.90; ENs
85.01, 84.76, 85.08 and 85.09; 8508.80.00; 8508.90.00
Dear Mr. Epstein:
This is in response to your letter dated October 12, 1993,
on behalf of Cap Toys, Inc., requesting the tariff classification
of "Spin Pop" handles under the Harmonized Tariff Schedule of the
United States (HTSUS). Samples were submitted for examination.
Arguments made at a meeting on March 30, 1994, and additional
submissions dated March 1, and April 6, 1994, were considered for
this decision.
FACTS:
The submitted information states that the "Spin Pop" is a
battery powered handle which is designed to spin a lollypop
inserted into the handle. It measures approximately 4 7/8 inches
in height, 1 inch in width, and 1 inch in depth. The top of the
"Spin Pop" handle tapers off to a circular protrusion measuring
approximately 7/16 of an inch in diameter. At the top of this
protrusion is a small hole into which the lollypop stick is
inserted. A small, battery powered motor (output of .75 to 1.50
watts ("W")) inside the handle spins the lollypop stick. On the
bottom of the handle is a panel which can be opened to remove and
replace the "AA" size battery. A button of the side of the
handle must be depressed to activate the motor which spins the
lollypop.
The "Spin Pop" is imported without an attached lollypop.
However, you state that the "Spin Pop" is not sold without a
lollypop attached and it is not imported for any other purpose
than to spin a lollypop. You contend that the "Spin Pop" is
classifiable under subheading 8479.89.90, HTSUS, as other
machines and mechanical appliances, not specified or included
elsewhere or under subheading 8508.80.00, HTSUS, as other
electromechanical tools for working in the hand with self-
contained electric motor.
The competing subheadings are:
8479.89.90 Machines and mechanical appliances having
individual functions, not specified or included
elsewhere in this chapter; parts thereof...Other
machines and mechanical appliances...Other...
Other....
8501.10 Electric motors and generators (excluding generating
sets)...Motors of an output not exceeding 37.5 W...Of
under 18.65 W...
8501.10.20 Synchronous, valued not over $4 each.
8501.10.40 Other....
8508.80.00 Electromechanical tools for working in the hand
with self-contained electric motor; parts
thereof...Other tools....
8509.80.00 Electromechanical domestic appliances, with self-
contained electric motor; parts thereof...Other
appliances....
ISSUE:
Is the "Spin Pop" classified as other machines and
mechanical appliances, not specified or included elsewhere under
subheading 8479.89.90, HTSUS, or as electric motors, of an output
under 37.5 W under subheading 8501.10, HTSUS, or as other
electromechanical tools for working in the hand with self-
contained electric motor under subheading 8508.80.00, or as other
electromechanical domestic appliances, with self-contained
electric motor under subheading 8509.80.00, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). GRI 1,
HTSUS, 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...."
Heading 8501, HTSUS, provides for "Electric motors and
generators...." In understanding the language of the headings of
the HTSUS, the Harmonized Commodity Description and Coding System
(HCDCS) Explanatory Notes (ENs) may be utilized. The ENs,
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 (Aug. 23, 1989). EN 85.01 (I)(A) (pg. 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.
Headquarters Ruling Letter (HQ) 952500, dated October 16,
1992, held that a DC motor, gearbox and encoder assembly was
classified under subheading 8501.10.40, HTSUS, as an electric
motor. HQ 952500 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, 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 (dated July 10, 1989)];
(2) those additional components are devices which motors
are commonly equipped [HQ 087909 (dated December 26,
1990)];
(3) those additional components serve merely to transmit
the power the motors produce [HQ 950557 (dated December
26, 1991)].
The HQ dates in parenthesis have been added. See also, HQ 950834
dated March 6, 1992, which did not classify an automotive passive
seat belt rail assembly under heading 8501, HTSUS, because it did
not fall into one of the three categories of assemblies listed
above, nor was it similar to the acceptable additional equipment
as listed in EN 85.01.
Based on the above standards, we are of the opinion that the
"Spin Pop" is classified under heading 8501.10, HTSUS. The "Spin
Pop" is essentially an electric motor with additional equipment,
i.e., gearing and a shaft, that is acceptable pursuant to EN
85.01 and/or falls within one of the three categories listed
above. Classification to the eight digit level is dependant upon
the value of the motor and whether it is synchronous.
You contend that the "Spin Pop" is classifiable under
subheading 8479.89.90, HTSUS, as other machines and mechanical
appliances, not specified or included elsewhere in this chapter.
EN 84.79 (pgs. 1313-1319) states that this heading is restricted
to machinery having individual functions which:
(a) Is not excluded from this Chapter by the operation of
any Section or Chapter Note.
and (b) Is not covered more specifically by a heading in any
other Chapter of the Nomenclature.
and (c) Cannot be classified in any other particular heading of
this Chapter since:
(i) No other heading covers it by reference to
its method of functioning, description or
type.
and (ii) No other heading covers it by reference to
its use or to the industry in which it is
employed.
or (iii) It could fall equally well into two (or more)
other such headings (general purpose
machines).
The "Spin Pop" is excluded from classification under
subheading 8479.89.90, HTSUS, because it does not meet the
requirements set forth in EN 84.79. As discussed previously, the
"Spin Pop" is classifiable as an electric motor in another
heading of the HTSUS (heading 8501, HTSUS). Therefore, the "Spin
Pop" is excluded from classification under subheading 8479.89.90,
HTSUS.
Additionally, in your April 6, 1994, submission, you contend
that the "Spin Pop" is classifiable under subheading 8508.80.00,
HTSUS, as other electromechanical tools for working in the hand
with self-contained electric motor. However, you then proceed to
state that the "Spin Pop" is similar to an electric toothbrush
and, therefore, should be classified accordingly. You cite to
Headquarters Ruling Letter (HRL) 087396 dated December 4, 1990,
which classified an electric toothbrush under subheading
8509.80.00, HTSUS, as other electromechanical domestic
appliances, with self contained electric motor. The
classification of the electric toothbrush was determined in
accordance with EN 85.09 (pg. 1345-1346) which specifically
enumerated "[e]lectric tooth brushes" as classifiable under
heading 8509, HTSUS.
The bulk of your argument seems to support the
classification of the "Spin Pop" under subheading 8509.80.00,
HTSUS, as other electromechanical domestic appliances, with self
contained electric motor. However, in conclusion you state once
again that the "Spin Pop" is classifiable under subheading
8508.80.00, HTSUS. In support of classification under subheading
8509.80.00, HTSUS, you state that the "Spin Pop" and the electric
toothbrush fulfill the same function, i.e., performing a task
mechanically rather than manually. Furthermore, in your view, it
is inconsistent to hold that one manually intensive labor saving
device, such as a toothbrush, would qualify as an
electromechanical tool for working in the hand with a self-
contained electric motor, while holding that another device which
also saves a person manually intensive effort, through the same
principal, would not be so classified.
To be completely responsive, we will address classification
under both subheading 8508.80.00, HTSUS, and subheading
8509.80.00, HTSUS. We are of the opinion that classification
under subheading 8509.80.00, HTSUS, as other electromechanical
domestic appliances, with self contained electric motor, is
inappropriate. The "Spin Pop" does not satisfy the terms of this
subheading which provides for domestic appliances. The "Spin
Pop" is not in any way similar to the exemplars for domestic
appliances listed in EN 85.09, i.e., vacuum cleaners, floor
polishers, scrubbers, scouring, sucking appliances, food grinders
and mixers, fruit or vegetable juice extractors, kitchen waste
disposers, food slicers, peelers, chipper cutters, knife
sharpeners, electric tooth brushes, etc.
Although no arguments were submitted to support the "Spin
Pop's" classification under subheading 8508.80.00, HTSUS, we are
of the opinion that this classification is also inappropriate.
Notwithstanding the fact that the "Spin Pop" is held in the hand
while being operated, it is not of the class or kind of "tool for
working in the hand" classifiable under subheading 8508.80.00,
HTSUS. EN 85.08 (pg. 1344-1345) states that:
The tools of this heading include tools for working various
materials, and are used in various industries.
EN 85.08 then lists various tools which are classifiable under
heading 85.08, HTSUS, such as drills, boring machines, saws,
wrenches, screwdrivers, hammers, riveters, trimmers, engraving
tools, electric hand scissors, etc. The "Spin Pop" is not
similar to the exemplars listed in EN 85.08. Accordingly, the
"Spin Pop" is not classifiable under subheading 8508.80.00,
HTSUS.
HOLDING:
The "Spin Pop" is classified under subheading 8501.10,
HTSUS, as electric motors, of an output under 37.5 W.
Classification to the eight digit level is dependant upon the
value of the motor and whether it is synchronous.
Sincerely,
John Durant, Director
Commercial Rulings Division