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HQ 952798




JANUARY 25, 1993

CLA-2:CO:R:C:M 952798 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8424.20.10, 3923.30.00, HTSUS

District Director of Customs
555 Battery St.
San Francisco, CA 94126

RE: Plastic Spray Mechanism With Plastic Container; Mechanical Appliance for Spraying or Dispersing Liquids; Heading 8424; Plastic Reservoir or Container, Heading 3923 PRD 2809-92-101193

Dear Sir:

This is our decision on Application for Further Review of Protest No. 2809-92-101193, dated July 10, 1992, filed on behalf of Erico Industries, against your action in liquidating an entry of spraying mechanisms and plastic bottles from Taiwan.

FACTS:

The articles in issue are hand held, piston pump spraying mechanisms with their plastic containers or reservoirs, and separate plastic reservoirs. No samples or descriptive literature were submitted with this protest. However, the invoice lists six (6) sprayers with containers, designated numbers 1136N, 1138N UPC, 1138N, 1196N (sea green), 1196N (black), and 1196N (mauve). Also listed are two mini shell plastic containers, rose pink and natural, designated number 1292, and a transparent shell plastic container, designated number 1198.

The entry was liquidated under the provision for mechanical appliances (whether or not hand operated) for projecting, dispersing, or spraying liquids or powders, simple piston pump sprays, in subheading 8424.20.10, Harmonized Tariff Schedule of the United States (HTSUS).

Protestant does not contest this classification for the six sprayers imported with their plastic reservoirs; rather, the claim is that the three plastic containers, designated numbers 1292 and 1198, should be separately classified under the provision for articles for the conveyance or packing of goods, of - 2 -
plastics, sacks and bags, in subheading 3923.29.00, HTSUS.

ISSUE:

Whether hand held spray mechanisms imported with their plastic containers or reservoirs are classifiable together; whether plastic reservoirs imported in the same shipment are separately classifiable.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80.

Relevant ENs, at p. 1189, indicate that heading 8424 includes appliances, with or without integral reservoirs, of the type operated by hand (including simple piston pump sprays). We conclude that the six sprayers imported with their plastic reservoirs were correctly classified in subheading 8424.20.10.

The ENs, at p. 1190, indicate that with certain exceptions not relevant here, heading 8424 includes parts for the appliances and machines of that heading. Among the articles the notes regard as parts falling in heading 8424 are reservoirs for sprayers.

Goods that are parts not included in any of the headings of chapters 84 and 85, and are suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading, are to be classified with the machines of that kind. Section XVI, Note 2(b), HTSUS.

The three plastic containers or reservoirs are not described on the invoice other than by color. There is no other evidence in the record that they have specialized logos or are configured in a way that dedicates them for use solely or principally with simple piston pump spray devices of heading 8424. Such - 3 -
containers usually have threaded throats to accommodate screw caps and are often used as containers for storage. We conclude, therefore, that there is insufficient evidence that these plastic containers qualify as parts of heading 8424.

As to the claimed classification, subheading 3923.29.00 provides for sacks and bags of other plastics. However, subheading 3923.30.00 provides for carboys, bottles, flasks and similar articles [of plastics]. Both subheadings are at the same level. There is no evidence that the plastic reservoirs or containers are sacks and bags of subheading 3923.29.00, or are akin to such articles. We conclude that the plastic reservoirs or containers are more akin to bottles or flasks of subheading 3923.30.00.

HOLDING:

The protest is denied as to the six spray mechanisms with their plastic reservoirs.

Under the authority of GRI 1, the three plastic containers, designated numbers 1292 (rose pink and natural) and 1198 are provided for in heading 3923 as articles for the conveyance or packing of goods, of plastics. They are classifiable in subheading 3923.30.00. The rate of duty under this provision is the same as the rate under the claimed provision. Since the rate for the classification we find applicable is less than the liquidated rate, the protest is allowed as to these containers.

A copy of this decision should be attached to the Customs Form 19 and forwarded to protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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