CLA-2 OT:RR:CTF:TCM H013681 JER
Ralph Saunders
Deringer Logistics Consulting Group
1 Lincoln Blvd., Suite 225
Rouses Point, NY 12979
RE: Modification of NY H86521; 3926.90.9880, HTSUS: plastic anchor and metal screw set
Dear Mr. Saunders:
On January 8, 2002, U.S. Customs and Border Protection (CBP) issued New York Ruling Letter (“NY”) H86521 to you on behalf of Cobra Anchors Co., Ltd., classifying certain metal screw/plastic anchor sets in heading 3926 of the Harmonized Tariff Schedule of the United States (HTSUS). After reviewing NY H86521, we have found that ruling to be in error as it pertains to article SKU #R021, article SKU #R187 and article SKU #T057.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY H86521 was published on March 20, 2008, in the Customs Bulletin, Volume 42, Number 13. One comment opposing the proposed modification was received in response to that notice. We will briefly discuss that comment, and our response, in the body of this ruling.
FACTS:
The merchandise at issue includes three screw/anchor sets comprised of varying sizes of plastic anchors and metal screws. These sets are compartmentalized in plastic storage cases which organize matching sizes and quantities of anchor and screw combinations. The items are used to fasten or mount articles to hollow walls (dry wall) or solid walls by inserting a metal screw inside the anchor sleeve to form a mounting unit. Article SKU #R021 consisted of 10 nylon plastic wall driller anchors packaged with 10 metal screws; Article SKU #T057 consisted of 12 nylon toggle anchors packaged with 12 metal screws; Article R187 consisted of 30 plastic wall anchors packaged with 30 metal screws; Article SKU #R211 consisted of 20 lead anchors packaged with 20 metal screws; Article SKU #V133 consisted of 20 steel hollow wall anchors packaged with 20 metal screws. Only R021, R187 and T057 are the topic of this discussion.
ISSUE:
Whether classification of the metal screw/plastic anchor kits is properly under heading 7318, HTSUS, or alternatively, heading 3926, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
GRI 3 provides, in pertinent part, that when goods are prima facie, classifiable under two or more headings, classification shall be effected by the following: (a) [t]he heading which provides the most specific heading shall be preferred to headings providing a more general description. However, … when two or more headings each refer to part only of the items in a set, those headings are to be regarded as equally specific, even if one of them gives a more complete or precise description of the goods. (b) … goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character … (c) [w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other materials of heading 3901 to 3914:
3926.90 Other:
* * *
3826.90.99 Other
3826.90.9980 Other
7318 Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles, of iron or steel:
Threaded articles:
7318.11.0000 Coach screws
* * *
7318.14 Self-tapping screws
7314.14.10 Having shanks or threads with a diameter of less than 6 mm
7318.14.1030 Of stainless steel
7318.14.1060 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
Explanatory Note X to GRI 3(b) provides in part that:
[t]he term “goods put up in sets for retail sale” shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; … (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking...
The merchandise at issue clearly satisfies the above criteria of a "set." Each of the subject kits consist of plastic anchors packaged with metal screws, each individual item being classifiable in two different headings under the HTSUS. If imported separately, the plastic anchor would be classifiable in heading 3926, HTSUS, while the metal screw would fall under heading 7318, HTSUS. The items are sold together to carry out the specific activity of wall mounting or fastening and are put up in a manner suitable for sale directly to users without repacking.
We find that neither component of the subject screw/anchor kit imparts the essential character of the subject merchandise. In hollow wall (i.e. drywall) or solid material (e.g. brick, concrete or plaster) applications, the plastic anchor enhances the capacity of the combined product’s ability to support, mount or fasten articles to a wall surface. Among fasteners generally, there are several types of plastic anchors, Conical Anchors, Split-Ribbed, Expansion Anchors (used in solid wall applications), Hollow-wall anchors (used in drywall applications), Wall Drillers or Threaded Drywall anchors (which have a pointed tip and are threaded) and Plastic Toggle anchors a.k.a. Nylon Wedge anchors (which provides the strongest support for drywall and ceiling mounting). Item R021 is a Wall Driller anchor which has a sharp pointed tip that is capable of piercing drywall surfaces. Similarly, item R187 is a standard Conical or Expansion anchor. Finally, item T057 is a Plastic Toggle anchor which is far less expensive than a Metal Toggle Anchor, but provides twice the amount of strength as a plastic expansion anchor.
According to our research, it is because of the (plastic) anchor that these items are capable of supporting heavily weighted items which are mounted or fastened to a wall. Generally, the plastic anchor expands or grips against the surface as the screw is tightened. As such, the primary retail lure and uniqueness of the set lie in the plastic anchor. However, standing alone, the plastic anchor is virtually useless. Without the metal screw, the plastic anchor is unable to mount, fasten or support a wall hanging or other article. In short, the anchor alone cannot carry out the specific activity or function which makes the item a screw/anchor kit.
The Explanatory Note VII to GRI 3(b) states that:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
In HQ 085356, dated November 20, 1989, we considered the essential character of a School Supply Kit which consisted of drawing instruments such as a pantograph, stencils and protractors. In that case we found that none of the items imparted the essential character of the kit and that each item appeared to merit equal consideration. Likewise, in HQ 958086, dated May 20, 1996, concerning an Activity Set for Children, we found that while the role of one item predominated over other items, that the activity of the predominant item could not be performed without the presence of the less substantial items. Accordingly, we classified the Activity Set for Children pursuant to GRI 3(c).
GRI 3 (c) provides that: [w]hen goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. In drywall or solid wall applications, the plastic anchor provides the distinguishing feature of the set. The anchor provides the strength and stability which reinforces the combined unit’s ability to support heavily weighted items mounted on drywall or solid wall surfaces. Yet, the role of the anchor could not be accomplished in the absence of the metal screw. Although the effectiveness of the combined unit is greatly reduced without the anchor, standing alone the metal screw has the independent capacity to mount or fasten articles to a wall or ceiling. In that sense, the metal screw imparts a significant feature relative to the use of the goods. Fundamentally, the screw affords the merchandise the capacity to mount or fasten items to walls or other surfaces. As a result, the fundamental role of the metal screw is the equivalent of the role which is imparted by the plastic anchor.
The comment received in response to the March 20, 2008 notice, opposes the modification of NY H86521. The commenter argues that the plastic anchors impart the essential character of the plastic anchor/metal screw sets. Specifically, the commenter notes CBPs statement that the “primary lure and uniqueness of the set lie in the plastic anchor.” The commenter further asserts that CBP’s statement that the “plastic anchors alone are virtually useless” was in error.
Our decision to classify the plastic anchor/metal screw sets according to GRI 3 (c) is consistent with previous rulings. For example, in HQ 953095, dated April 15, 1993, a case involving the classification of plastic wall anchor sets, CBP determined that neither the metal screws nor the plastic anchors imparted the essential character of the set. The plastic anchors in HQ 953095 were substantially similar to the subject plastic anchors. They were threaded anchors which expanded as the tapping screws were screwed in. In HQ 953095, CBP determined that the function of both the plastic anchor and the metal screw were essential to the overall and combined purpose of the plastic anchor/metal screw set.
Next we consider the relevance of the plastic anchors independent of the metal screws. It is argued that certain plastic anchors may carry out the anchoring function without the presence of the metal screw. However, we are not able to locate any rulings nor did the commenter offer any evidence which would support this position. Instead, we find that while the plastic anchors have a significant role in anchoring objects to a wall or surface, that standing alone, the primary purpose of the plastic anchor/metal screw set could not be performed by the plastic anchor. For example, the winged shaped plastic toggle anchor which is unique in its design and substantial in construction could not by itself attach or mount an object to a wall or surface. While we do not find the subject plastic anchors to be without any function or relevance, we do find however, that both the plastic anchor and the metal screws are equally valuable to performing the primary purpose of the merchandise.
In Structural Industries, Inc. v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade, 2005), the Court noted that the essential character of an article is “that which is indispensable to the structure, core or condition of the article, i.e. what it is.” The Court further explained that the essential character of an item is imparted by the item or component which is indispensable to carrying out the item’s primary objective. Id at 1338. Similarly, the decision in Better Home Plastics Corp. v. United States, 20 CIT 221; 916 F. Supp. 1265 (Ct. Int’l Trade, 1996), found that the essential character is not necessarily the component which creates the item’s “retail lure.” In Better Home, a textile shower curtain which provided the desirable decorative characteristics and thus created the retail lure for the shower curtain set was not the item which imparted the essential character. Id at 1267-1269. Instead, the Court determined that it was the inner plastic liner which imparted the essential character. The Court reasoned that it was the inner plastic liner that was indispensable to prevent water from escaping from the shower. id at 1269.
In the instant, case both items are indispensable to performing the set’s primary objective. The metal screw has the capacity to attach, affix or anchor an object to a surface, while the plastic anchors under discussion could not. Yet the use of the plastic anchor is what increases the item’s capacity to support heavily weighted items mounted on drywall or solid surfaces. Accordingly, the items are equally specific and warrant equal consideration.
As such, we find that neither the plastic anchor nor the metal screw impart the essential character of the set. Therefore, we classify the set according to GRI 3 (c). See HQ 953095, NY I83699, dated June 25, 2002, NY I84859, dated August 8, 2002 and I8799, dated September 26, 2002 (these rulings reflect CBP’s consistent classification of substantially similar screw/anchor kits under heading 7318, HTSUS). We find that the correct classification of R021, R187 and T057 is under heading 7318, HTSUS, as, “[s]crews, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles of iron or steel.”
HOLDING:
By application of GRI 3(c), R021, R187 and T057 are classified in heading 7318, HTSUS. Specifically, they are provided for in subheading 7318.14.1060, HTSUS, which provides for: Screws, bolts, nuts, coach screws, screw hooks, rivets, cotters, cotter pins, washers (including spring washers) and similar articles. Of iron or steel: Self-tapping screws: Having shanks or threads with a diameter of less than 6 mm, Of stainless steel, Other. The column one, general rate of duty is 6.2% percent ad valorem.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
EFFECT ON OTHER RULINGS:
NY H86521, dated January 8, 2002, is hereby modified.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division