Application for Further Review of Protest 3901-08-100796; TCell dispenser

HQ H033518 October 8, 2009 CLA-2: RR:CTF:TCM H033518 KSH CATEGORY: Classification TARIFF NO.: 8543.90.88 Port Director U.S. Customs and Border Protection 9915 Bryn MawrRosemont, IL 60018 RE: Application for Further Review of Protest 3901-08-100796; TCell dispenser Dear Port Director:       This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3901-08-100796, filed by Rodriguez, O’Donnell Gonzalez & Williams, on behalf of its client, Technical Concepts, LLC. FACTS: The merchandise at issue consists of one component of a complete TCell air freshener dispenser, specifically, the plastic housing for a TCell air freshener. The plastic housing consists of the dispenser, mounting screws, alcohol prep pad, key and double sided tape. The dispenser measures approximately 5 ½ inches x 2 ½ inches x 2 inches and incorporates a resistor and metal contacts. It houses a refill cartridge that is imported separately. The resistor in the dispenser sets the timing of the dispenser and the metal contacts of the housing push down on the fuel cell and activator cap located on the refill cartridge closing the circuit so that electricity can flow to the fuel cell. The fuel cell and activator cap generate gases when current flows through the electrodes. The reaction is created by zinc and water which creates zinc oxide and hydrogen gas. The hydrogen gas exerts pressure, pushes out fragrance and wicks the emanator pad. When the pull-tab is removed from the bottom cup and the refill cartridge is placed in the plastic housing, the bottom of the plastic housing pierces the foil cap and predoses the emanator pad. The protest is against Customs and Border Protection’s (CBP) classification and liquidation of one entry of dispensers under heading 3926 of the Harmonized Tariff Schedule of the United States (HTSUS).  Between September 28, 2006 and September 22, 2007, protestant entered the merchandise subject to this protest in heading 8424, HTSUS, which provides for: "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 jet projecting machines.”  The merchandise was liquidated in heading 3926, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914” on November 30, 2007 and December 7, 2007. On May 28, 2008, protestant filed a protest and application for further review against the classification and liquidation of the merchandise in heading 3926, HTSUS. Protestant’s AFR request was approved. ISSUE: Whether the dispensers are classified in heading 3926, HTSUS, as other articles of plastics, heading 8424, HTSUS, as mechanical appliances for projecting, dispersing or spraying liquids or powders or heading 8543, HTSUS, as other electrical machines and apparatus having individual functions. LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the entry made on October 23, 2006. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of the protest is warranted pursuant to 19 CFR §§174.24(b) and 174.25 as the protest is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, protestant cites to New York Ruling Letters (NY) J80297, dated February 4, 2003; NY E86434, dated September 20, 1999; NY 839618, dated May 2, 1989 and NY 855879, dated September 21, 1990. Classification under the HTSUS is made in accordance with the General Rules of Interpretation. GRI 1 provides that the classification of goods shall 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 may then be applied.  The 2007 HTSUS headings at issue are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 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; 8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Note 2 to Chapter 39, HTSUS, states in relevant part, the following: 2.    This Chapter does not cover: * * * *  (s) Articles of Section XVI (machines and mechanical or electrical appliances);   Note 2, to Section XVI, HTSUS, governs, in part, the classification of parts of headings 8424 and 8543, HTSUS. It states that: 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:(a)     Parts which are goods included in any of the headings of chapters 84 and 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; (b)     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; (c)     All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8485 or 8548. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to Chapter 84, HTSUS, provides in relevant part, the following: In general, Chapter 84 covers machinery and mechanical apparatus and Chapter 85 electrical goods.  However, certain machines are specified in headings of Chapter 85 (e.g., electro-mechanical domestic appliances) while Chapter 84 on the other hand covers certain non-mechanical apparatus (e.g., steam generating boilers and their auxiliary apparatus, and filtering apparatus).   The EN to Chapter 85, HTSUS, provides in relevant part, the following: This Chapter covers all electrical machinery and equipment, other than:   (a)   Machinery and apparatus of a kind covered by Chapter 84, which remains classified there even if electric (see the General Explanatory Note to that Chapter).   and (b)   Certain goods excluded from the Section as a whole (see the General Explanatory Note to Section XVI).   * * * *   This Chapter covers :   * * * * (3)   Certain machines and appliances which depend for their operation on the properties or effects of electricity, such as its electromagnetic effects, heating properties, etc. (headings 85.05, 85.11 to 85.18, 85.25 to 85.31 and 85.43). By the terms of Note 2 to Chapter 39, HTSUS, and Note 2(b) to Section XVI, HTSUS, the plastic housing cannot be classified in heading 3926, HTSUS, if the plastic housing is solely or principally used as a part of goods of heading 8424, HTSUS, or heading 8543, HTSUS. Consequently, it is necessary to first determine whether the entire TCell air freshener is classified in heading 8424, HTSUS or heading 8543, HTSUS. Protestant argues that the TCell has moving parts and is a machine. The term “machine” is not defined in the HTSUS or the ENs. A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meaning. Nippon Kogaku (USA), Inc. v. U.S., 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. U.S., 673 F.2d 1268 (1982). In Headquarters Ruling Letter (HQ) 955546, dated February 8, 1994, CBP cited the following definition of “machine”: (1): an assemblage of parts that transmit forces, motion, and energy one to another in a predetermined manner; (2): an instrument (as a lever) designed to transmit or modify the application of power, force, or motion.Webster's Ninth New Collegiate Dictionary, p. 713 (1990). Protestant maintains that the electrochemical reaction in the TCell generates gas which increases pressure in the upper chamber of the refill cartridge which exerts force on the fragrance in the lower chamber of the refill cartridge so that it flows to the emanator pad from where it is dispersed. Protestant states that this process involves the transmission of force from the gas, motion of the gas and energy in the form of electricity. As such, protestant concludes the TCell constitutes a machine that has moving parts and is the equivalent of other machines that disperse, project or spray liquids. Protestant notes that prior rulings have classified fuel cells, such as the fuel cell located inside the refill cartridge, as electric motors in heading 8501, HTSUS, and asserts that electric motors have long been recognized as “machines” as evidenced by the EN to heading 8501, HTSUS, which states that “Electric motors are machines for transforming electrical energy into mechanical power.” Specifically, protestant cites to NY J80297, dated February 4, 2003 (power system which used a chemical reaction between gas fuel and oxygen to produce a net power output of 1 to 5 kW that could be augmented up to a 10-kW peak output for 30 minutes); NY E86434, dated September 20, 1999 (fuel cell power plant that used a fuel processor to extract hydrogen from natural gas and feed the hydrogen into a fuel stack, which generated water, heat and DC electricity); NY 839618, dated May 2, 1989 (fuel cell subsystem designed to supply electric power for bus application) and NY 855879, dated September 21, 1990, (graphite-carbon separator used in fuel cells to generate power). The metal contacts of the plastic housing push down on the fuel cell and activator cap located on the refill cartridge closing the circuit so that electricity can flow to the fuel cell. The fuel cell and activator cap generate gases when current flows through the electrodes. The hydrogen gas exerts pressure, pushes out fragrance and wicks the emanator pad. Insofar as the TCell air freshener transmits force from the gas and moves the gas through electricity, we are satisfied that the TCell air freshener meets the above definition of “machine.” At issue, however is the nature of the machine, specifically whether it is a mechanical appliance of heading 8424, HTSUS, or electrical machine of heading 8543, HTSUS. The TCell depends on the effects of electricity to create the current necessary to generate the gas which will push out the fragrance. While it may perform a mechanical function, the mechanical function is subsidiary to the electrical function. As such, it is classifiable in heading 8543. See EN (3) to Chapter 85, HTSUS. We note that our decision is consistent with prior rulings classifying merchandise which utilized electricity to produce gas in heading 8543, HTSUS. Specifically, in HQ 088351, dated March 26, 1991, an electrolyzer containing an anode cell and a cathode cell, both connected to an electric power supply, and separated by an ion exchange membrane which produces hydrogen gas, caustic soda and chlorine gas was classified in heading 8543, HTSUS. Similarly, in HQ 957651, dated March 20, 1995, CBP classified, in part, a hydrogen generator in which the hydrogen is obtained by electrolysis of demineralized water through a cell with patented multilayer electrodes in heading 8543, HTSUS. The plastic housing incorporates a resistor and metal contacts which close the circuit so that electricity flows to the fuel cell located in the refill cartridge and is specially designed to hold the refill cartridge. In accordance with Note 2(b) to Section XVI, the plastic housing which is suitable for use solely or principally with the refill cartridge to form a completed TCell is classified in heading 8543, HTSUS, as a part suitable for use solely with a particular machine. By operation of Note 2 to Chapter 39, it is excluded from heading 3926, HTSUS. HOLDING:  By application of GRI 1 and Section XVI Note 2(b), the plastic housing is classified in heading 8543, HTSUS. It is specifically provided for in subheading 8543.90.88, HTSUS, as "Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Parts: Other: Other: Other.” The 2007 general, column one rate of duty in effect at the time of entry was 2.6% ad valorem. You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. No later than 60 days from the date of this letter, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP homepage on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.      Sincerely,                           Myles B. Harmon, Director                                 Commercial and Trade Facilitation Division