CLA-2 RR:CR:GC 964851ptl
Ms Karen L. Hershman
Manager of Administration Cinzia
Fashion Dynamics, Inc.
100 School Street
Bergenfield, NJ 07621
RE: Plastic, chemical filled eye masks; NY 864393 revoked.
Dear Ms. Hershman:
This is in reference to NY 864393, dated June 26, 1991, issued to you by the Director, National Commodity Specialist Division, New York, in which a plastic, chemical filled eye mask was classified in subheading 3824.90.5050, Harmonized Tariff Schedule of the United States (HTSUS), which provides for chemical products not elsewhere provided for. We have reviewed that ruling and determined that the classification provided is incorrect. Pursuant to the analysis set forth below, the correct classification for the article is subheading 3924.90.55, HTSUS, which provides for other household and toilet articles, of plastics, other, other.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY 864393 was published on March 14, 2001, in the Customs Bulletin, Volume 35, Number 11. No comments were received.
FACTS:
According to NY 864393, the plastic eye mask is filled with chemicals and can be heated or chilled. The user places the plastic in a textile packet which has an elastic band to keep the article over his or her eyes.
ISSUE:
What is the classification of plastic, chemical filled, eye mask?
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). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are as follows:
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included:
3824.90 Other:
Other:
Other
Other
Other
3824.90.9050 Other
3924 Tableware, kitchenware, other household articles and
toilet articles, of plastics:
* * *
3924.90 Other:
* * *
3924.90.55 Other.
As stated above, the GRIs are to be applied in order. GRI 1 provides that articles are to be classified by the terms of the headings and any relevant Section and Chapter Notes. For an article to be classified is a particular heading, that heading must describe the article.
Because the eye masks are goods consisting partly of plastic and partly of a chemical mixture, for tariff purposes, they constitute goods consisting of two or more materials and substances. Thus, they may not be classified solely on the basis of
GRI 1. The eye masks are described in GRI 2(b) which covers mixtures and combinations of materials and substances and goods consisting of two or more materials and substances. According to GRI 2(b), “The classification of goods consisting or more than one material or substance shall be according to the principles of Rule 3.” Because the ingredients of the eye masks present us with a composite good for classification purposes, we turn to GRI 3(b) which governs the classification of mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale. Under GRI 3(b), classification of an article is to be determined on the basis of the component which gives the article its essential character. The EN’s provide that, if this rule applies, goods shall be classified as if they consisted of the material or component which gives them their essential character. EN Rule 3(b)(VIII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.
Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is
generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.
Before we can determine the essential character of the eye masks, we must first determine the classification of the constituent materials or components.
Heading 3924, HTSUS, provides for, among other things, household articles and toilet articles, of plastics. The ENs to subheading 39.24 provide that the heading covers such household articles of plastics as hot water bottles. The liquid contents of the masks are chemically inert mixtures which are either heated or cooled prior to use. The flexible plastic shell conforms to the wearer's face to permit maximum contact with the mask. Hot water bottles have traditionally been used by people to provide relief to sore areas. The vinyl plastic eye mask is an updated version of the traditional hot water bottle, taking advantage of modern manufacturing techniques to achieve traditional results. For the above reasons, by application of GRI 1, the vinyl plastic portion of the eye mask is classified in heading 3924, HTSUS, which provides for other household articles and toilet articles, of plastics.
The chemical mixture which is inside the mask is itself a composite good. The chemical mixture is classified in heading 3824, HTSUS, as residual products of the chemical or allied industries, not elsewhere specified or included.
The composite goods being classified are being imported to be used as eye masks. One of the key elements of an eye mask is its ability to conform to the contours of the wearer's face. In this case, the "indispensable function" (Better Home Plastics, supra) of the article is that it can be comfortably worn on ones face. The plastic shell which contains the chemicals provides the article with the flexibility necessary to enable the wearer to wrap the article around his or her face while simultaneously enjoying the benefits of the hot or cool contents. Without the plastic, the article could not function as designed. This criterion indicates that the essential character of the good is provided by the plastic component. We therefore conclude that the essential character of the product is provided by the plastic component so that, under GRI 3(b), the eye masks are classifiable in heading 3924, HTSUS.
For the above reasons, plastic chemical filled eye masks are classified in subheading 3924.90.55, HTSUS, which provides for other household articles and toilet articles, of plastics, other, other.
HOLDING:
The plastic chemical filled eye masks are classified in subheading 3924.90.55, HTSUS, which provides for: Tableware, kitchenware, other household articles and toilet articles, of plastics, other, other.
NY 864393, dated June 26, 1991, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division