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HQ 955233


April 14, 1994
CLA-2 CO:R:C:M 955233 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8501.10

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, (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


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