OT:RR:CTF:EMAIN H294716 SK
Mr. Robert J. Core Encore International 170 Broadway Suite 1601 New York, NY 10038
RE: Revocation of NY 874164 and NY R00270; Spray actuators; Spray can valve;
Mechanical appliance for spraying liquid; Parts.
Dear Mr. Core:
This ruling is in reference to New York Ruling Letter (NY) 874164, dated May 13, 1992, issued to L’Oreal Hair Care and regarding the classification of a plastic actuator under the Harmonized Tariff Schedule of the United States (HTSUS). In NY 874164, U.S. Customs and Border Protection (CBP) classified the subject article in subheading 8424.90.90, HTSUS, which provides for parts for mechanical appliances for spraying liquids, other. Upon reconsideration, CBP has determined that NY 874164 is in error.
CBP has also reviewed NY R00270, dated May 13, 2004, which involves the classification of substantially similar merchandise in subheading 3923.50.00, HTSUS, which provides for stoppers, lids, caps and other closures, of plastics. As with NY 874164, we have determined that the tariff classification of the subject merchandise in this ruling is incorrect.
CBP is revoking NYs 874164 and R00270 according to the analysis set forth below.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, a notice proposing to revoke NYs 874164 and R00270 was published on April 3, 2019, in Volume 53, Number 9 of the Customs Bulletin. One comment was received in opposition to the proposed action.
FACTS:
In NY 874164, the subject merchandise is described as a plastic actuator that sits atop a can of hair mousse. The actuator exerts pressure on a valve and plastic stem to release mousse which is packaged under pressure. Once actuated, propellant forces the mousse up the plastic stem and through the actuator's dispersing holes, assuring a uniform, foamed delivery.
In NY R00270, CBP classified a plastic actuator/cap designed to attach to the top
of an aerosol can of deodorant. The actuator/cap includes a plastic handle which, when pressed, opens a valve on the can to release the deodorant.
As the articles in these rulings disburse, respectively, hair mousse and deodorant, and these products are typically released in a uniform spray, it is assumed that they do not contain a control valve to further regulate the spray pattern of the liquid that is released through the aerosol can’s pressure spray can valve.
LAW AND ANALYSIS:
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 will then be applied in order.
The following provisions of the HTSUS are under consideration:
8424 Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines; parts thereof:
8424.89 --Other appliances: Other
8424.90 --Parts
8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:
8481.90 --Parts
3923 Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:
3923.50 --Stoppers, lids, caps and other closures, of plastics:
Section XVI, Note 2, provides in pertinent part as follows:
2. Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
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 (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517.
Note 2(s) to Chapter 39 excludes articles of section XVI (machines and mechanical or electrical appliances).
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide commentary on the scope of each HTSUS heading and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 84.24 provides, in relevant part:
This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray.
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PARTS
Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading includes parts for the appliances and machines of this heading. Parts falling in this heading thus include, inter alia, reservoirs for sprayers, spray nozzles, lances and turbulent sprayer heads not of a kind described in heading 84.81.
* * *
EN 84.81 provides, in relevant part:
This heading covers taps, cocks, valves and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge, etc.), of fluids (liquid, viscous or gaseous), or, in certain cases, of solids (e.g., sand). The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or a gas.
The appliances regulate the flow by opening or closing an aperture (e.g., gate, disc, ball, plug, needle or diaphragm). They may be operated by hand (by means of a key, wheel, press button, etc.), or by a motor, solenoid, clock movement, etc., or by an automatic device such as a spring, counterweight, float lever, thermostatic element or pressure capsule.
* * *
The heading includes inter alia :
* * *
(17) Pressure spray can lids for cans to be filled with liquid or gaseous insecticides, disinfectants, etc., under pressure, comprising a metal head fitted with a press button displacing a needle which opens or closes the ejection orifice.
* * *
PARTS
Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), parts of the appliances of this heading are also classified here.
One comment was received in response to CBP’s solicitation of comments. The commenter asserts NY 874164 should not be revoked as the actuator at issue in that ruling is properly classified under subheading 8424.90, HTSUS, as parts of mechanical appliances, whether or not hand operated, for projecting, dispersing or spraying liquids or powders, by application of Section XVI Note 2(b), supra. In support of this classification, the commenter states that CBP created an “artificial distinction between aerosol cans and their valves” when it held that the actuator is dedicated for use with spray can valves of heading 8481, HTSUS, and that this characterization ignores the commercial reality that “actuators would only be attached to the aerosol can valves after they had already been inserted into and affixed to the cans” and that “actuators would never be attached to valves that are not already in the cans.” The commenter further submits that aerosol cans, imported complete with actuators, are classified under subheading 8424.89, HTSUS, as a mechanical appliances and therefore actuators imported separately should be classified as parts thereof in subheading 8424.90, HTSUS. In support of this argument, the commenter cites to Headquarters Ruling Letter (HQ) W968211, dated February 6, 2007, in which CBP classified battery-operated motorized automatic aerosol dispensers, imported without aerosol can and batteries, as “parts” of subheading 8424.90, HTSUS. In that ruling, CBP determined that the subject dispenser itself does not have the ability to project, disperse or spray liquids or powders and, as such, does not have the essential character of a good of heading 8424, HTSUS. The commenter also cites to HQ W968210, dated February 6, 2007, in which CBP classified substantially similar battery-operated motorized automatic aerosol dispensers in subheading 8424.90, HTSUS, pursuant to the same legal analysis. The commenter also refers to NY N047571, dated January 13, 2009, where CBP classified an automatic aerosol air freshener dispenser featuring an integrated circuit board, motor, and timer, imported as a complete system with an aerosol cannister, in subheading 8424.89, HTSUS, and where the same dispensing system, imported without the cannister, was classified in subheading 8424.90, HTSUS. Lastly, the commenter states that classification of the subject actuators as parts of heading 8424, HTSUS, would be consistent with that heading’s ENs which provide that parts of the heading include “spray nozzles.”
As an initial matter, we note that the term “actuator” is a generic term that describes an appliance or device that actuates and is a “mechanical device for moving or controlling something.” See https://www.merriam-webster.com/dictionary/actuator (2018). As such, actuators may possess different design features from those at issue, such as valves that create different spray patterns or control the flow of liquid as well as actuators that also serve as a cap. The subject actuators at issue in NYs 874164 and R00270 spray the liquid contents of an aerosol can by exerting force on a spray can valve via a hollow tube or stem. As these particular models disperse, respectively, hair mousse and deodorant for uniform delivery, they do not possess valves.
As set forth above, Section XVI Note 2(a) prescribes rules governing the classification of articles as “parts” of machinery within this section and provides that “[P]arts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings.” The subject actuators are prima facie described by heading 8424, HTSUS, in that they are hand-operated mechanical appliances for dispersing or spraying liquids. The subject actuators are designed to be depressed by a finger to exert pressure on a tube that actuates a valve atop an aerosol can to release gas propelled liquid hair mousse and deodorant for spraying. Therefore, by application of this legal note, the actuators are classified in subheading 8424.89, HTSUS, which provides for, in pertinent part, other hand-operated mechanical appliances for dispersing or spraying liquids.
Heading 8481, HTSUS, provides for, in pertinent part, valves and parts thereof.
As the subject actuators do not incorporate a valve in their design, they are not classified as valves of heading 8481, HTSUS.
As the subject actuators are themselves appliances of heading 8424, HTSUS, and classified under that heading pursuant to Note 2(a) to Section XVI, we need not examine whether they are prima facie classifiable under subheading 8481.90, HTSUS, as parts of valves, which would be pursuant to Note 2(b) to Section XVI, supra.
For this same reason, we do not reach the question of whether the subject actuators are classified as parts of mechanical appliances in subheading 8424.90, HTSUS, by application of Section XVI Note 2(b), and the commenter’s submissions on this point are rendered moot.
Lastly, we find NY R00270 to be in error in which CBP classified a plastic actuator in subheading 3923.50.00, HTSUS, which provides for stoppers, lids, caps and other closures, of plastics. As set forth above, Note 2(s) to Chapter 39 excludes articles of Section XVI. In that ruling, CBP stated that classification in subheading 8424.90, HTSUS, as other parts of mechanical appliances for spraying liquids was inappropriate in that “aerosol can sprayers are classified as containers, not as mechanical appliances of heading 8424, HTSUS, and therefore the actuator/cap cannot be classified as a part of the appliances of heading 8424.” We disagree, and note that the subject actuator is classifiable in Section XVI, in subheading 8424.89, HTSUS, for the reasons set forth above.
HOLDING:
By application of GRI 1 and Note 2(a) to Section XVI, the articles at issue in NYs 874164 and R00270 are classified under subheading 8424.89.90, HTSUS. The 2019 applicable rate of duty is 1.8 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY 874164, dated May 13, 1992, and NY R00270, dated May 13, 2004, are hereby REVOKED in accordance with the above analysis.
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