OT:RR:CTF:CPMM H043742 APP
Ms. Marilyn-Joy Cerny
Mr. Robert L. Grasing
Sandler, Travis & Rosenberg, P.A.
24 Smith Street, Building 2, Suite 102
Pawling, NY 12564
RE: Fillable plastic containers; Revocation of NY N018731, NY N013622,
NY N012286, NY N021076, NY H86212, NY N025433, NY D81320,
NY C83630, HQ 961700 and HQ H044635, and Modification of
NY N007698
Dear Ms. Cerny and Mr. Grasing:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N018731, dated November 8, 2007 (issued to Williams-Sonoma, Inc.); NY N013622, dated July 25, 2007,
NY N012286, dated July 5, 2007, and NY N007698, dated March 30, 2007 (issued to Easter Unlimited, Inc.); NY N021076, dated January 16, 2008 (issued to Intradeco Apparel, Inc.); NY H86212, dated January 14, 2002 (issued to Meijer Distributions); NY N025433, dated April 25, 2008 (issued to Atico International USA, Inc.); NY D81320, dated September 8, 1998 (issued to Paper Magic Group); NY C83630, dated February 4, 1998 (issued to Sun Hill Industries, Inc.); Headquarters Ruling Letter (“HQ”) H044635, dated February 18, 2009 (issued to PTI Group, Inc.); and HQ 961700, dated February 19, 1999 (issued to Four Star International Trading Company), regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of fillable plastic containers. CBP classified the containers in heading 3924, HTSUS, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics” and in heading 9505, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof.”
We have determined that these rulings are in error. For the reasons set forth below, we hereby revoke NY N018731, NY N013622, NY N012286,
NY N021076, NY H86212, NY N025433, NY D81320, NY C83630, HQ 961700 and HQ H044635, and we modify NY N007698.
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. § 1625(c)(l)), 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), a notice was published in the Customs Bulletin, Volume 52, Number 39, on September 26, 2018, proposing to revoke NY N018731,
NY N013622, NY N012286, NY N021076, NY H86212, NY N025433,
NY D81320, NY C83630 and HQ 961700, and to modify NY N007698, and to revoke any treatment accorded to substantially identical transactions. Two comments in opposition to the instant action were received in response to the notice and are addressed below.
FACTS:
Unless otherwise noted, the subject merchandise consists of plastic empty containers that open by snapping in half at the middle. In their condition as imported, the containers are empty unless otherwise noted. The purchaser can fill them with small items after purchase. Some of the containers are imported packaged with a plastic bag as noted below.
The plastic egg-shaped containers in NY N018731 are identified as “The Pottery Barn Kids Easter Transparent Eggs, SKU # 5064852.” These are ten transparent pastel-colored egg-shaped containers packaged together. Each is made of acrylic and is approximately 4 inches long and 3 inches in diameter.
The plastic egg-shaped containers in NY N013622 are identified as “Item number 3051 – Funny Farm Eggs,” “Item number 3058 – Crazy Eggs,” and “Item number 3088 – Easter Egg Hunt.” Each container measures approximately
2.5 inches in height. The “Funny Farm Eggs” are packaged eight pieces to a polybag for retail sale and have a different animal printed on the surface of one side. The “Crazy Eggs” are packaged ten pieces to a polybag for retail sale and have a different humorous facial expression printed on the surface of one side. The “Easter Egg Hunt” consists of 50 plastic egg-shaped containers packaged in a reusable carry bag composed primarily of vinyl with a zippered closure.
The fillable plastic containers in NY N012286 are identified as “Item number 3019Q – 12 Large Eggs,” “Item number 3002 – 48 Count Eggs,” “Item number 3001 – Easter Egg Hunt,” “Item number 3041 – Vibrant Colors Chrome Eggs,” and “Item number 3056 – Carrot Containers.” The “12 Large Eggs” are colored plastic egg-shaped containers measuring approximately 2.5 inches in height packaged 12 pieces to a polybag for retail sale. The “48 Count Eggs” are colored plastic egg-shaped containers measuring approximately 2.5 inches in height and packaged 48 pieces to a polybag for retail sale. The “Easter Egg Hunt” consists of 48 colored plastic egg-shaped containers each measuring
2.5 inches in height as well as one gold colored and one silver colored container each measuring 3.5 inches in height for a total of 50 containers. The “Vibrant Colors Chrome Eggs” are colored plastic egg-shaped containers each measuring approximately 2.5 inches in height and packaged eight pieces to a polybag for retail sale. The “Carrot Containers” consist of plastic carrot-shaped containers that are orange in color with a green colored top, each measuring approximately 3.25 inches in height and packaged eight pieces to a polybag for retail sale.
The plastic egg-shaped containers in NY N007698 are identified as “Item number 3019 – Easter Egg Candy Container.” Each measures 2.5 inches in height. There is a hole at the top of each for hanging. No strings are included.
The plastic container in NY N021076 is identified as “Item No. CT1401 Plastic Easter Egg Containing Knit Hair Ponyo’s.” The item consists of six plastic eggs each containing five ponytail holders matching the color of the eggs and retail packaged in disposable netting. The ponytail holders are constructed of elasticized knit polyester fabric and are approximately 1.25 inches in diameter. The plastic eggs are transparent egg-shaped containers of various colors that are approximately 3 inches long and 1.5 inches in diameter. The egg-shaped containers are suitable for repetitive use.
The plastic containers in NY H86212 are available in assorted colors. They are identified as “item number 862041, Easter candy containers.” The containers are in the shape of a bunny with a hollow body.
The plastic containers in NY N025433 are identified as “Easter Chick Containers, set of 3, item number A081KA01100.” This item is comprised of three identical hollow containers made of 100% polypropylene plastic material. The body of each container is egg-shaped, yellow in color, and measures
3.5 inches in height by 2.5 inches wide. Each container has painted onto it black eyes, an orange beak, a yellow wing on each of the two opposing sides, and orange feet, evoking the appearance of a chicken.
The plastic containers in NY D81320 are identified as “Pooh Filler Eggs, item #612416,” “Item #611532, 3 Piece Puzzle Eggs,” and “Easter Egg Clipable Candy Dispenser, item #612091.” The “Pooh Filler Eggs” item consists of six colored plastic egg-shaped containers. One side of the egg is decorated with the raised impression of the head of the “Pooh” character. Encircling “Pooh” are tiny pin holes. No string or chain is included. The eggs open lengthwise and are hollow inside. The “Pooh Filler Eggs” will be packaged in a polybag with header. The “3 Piece Puzzle Eggs” are hollow, plastic, colored egg-shaped containers packaged four to a bag with a header card. Each container is made of three sections, which vary in color. The sections pull apart and are interchangeable allowing to mix and match the pieces to obtain different color combinations. The containers contain a pin hole at one end for hanging. The “Easter Egg Clipable Candy Dispenser” is a plastic oval-shaped container measuring 4 inches in length and 2.75 inches in width, and packaged in a clear bag with cardboard header. A small panel slides down on the side allowing the container to be filled and emptied. The cover contains the raised impression of decorated eggs. A clip is affixed to the back, which allows it to be fastened onto bags, books, and similar items.
The merchandise in NY C83630 is identified as “Fill or Hang Bunny Eggs.” It consists of six plastic egg-shaped containers in a net package with cardboard header. The containers are hollow and break open lengthwise. Each container is colored on one side while the other side is transparent and painted with the face of a bunny with protruding ears measuring 4 inches in length each.
The goods in HQ H044635 are identified as empty, hollow, plastic containers, which are colored, printed, and shaped to resemble the characters of SpongeBob SquarePants, Dora the Explorer, Disney Princess, Disney/Pixar Cars, and Elmo. The treat containers each measure approximately 2 ½ to
3 inches in length. They are all formed by two equal halves designed to fit together to close and to pull apart to open. The containers are packaged three of the same character to a polybag for retail sale. The containers may be opened and filled with candy or a novelty item after purchase. The items are marketed and sold for Easter activities such as filling Easter baskets, Easter egg hunts, and Easter “gift giving.”
The plastic container in HQ 961700 is identified as “Easter Egg Container #3.” It consists of two dozen pastel colored egg-shaped containers in a “novelty net bag.” The containers are 2 inches long. The “novelty net bag” is a plastic net drawstring bag resembling a rabbit with stuffed textile representations of a rabbit’s head, feet, and legs attached in the appropriate places on the bag.
ISSUES:
1. Whether the fillable plastic containers are classifiable in heading 3924, HTSUS, as household articles of plastics, or in heading 3926, HTSUS, as other articles of plastics, or in heading 9505, HTSUS, as festive or other entertainment articles.
2. Whether, when combined with plastic bags, or in one instance filled with ponytail holders, the product constitutes a set with the fillable plastic container imparting the essential character.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSR”). The GRIs and the AUSR are part of the HTSUS and are to be considered statutory provision of law for all purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
GRI 3 provides, in relevant part, as follows:
3. When, by application of rule 2(b) or for any other reason, goods are, [prima facie], classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
Mixtures, composite goods consisting of different materials or made up of different components, and 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, insofar as this criterion is applicable.
When 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 headings under consideration are the following:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
Note 2(y) to chapter 39, HTSUS, provides that this chapter does not cover articles of chapter 95, HTSUS.
Note 1(w) to chapter 95, HTSUS, states that this chapter does not cover, “Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).”
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN (VIII) to GRI 3(b), states, “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.”
EN (X) to GRI 3(b) defines the term “set” in GRI 3(b) as follows:
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings …
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
EN 39.24 states that heading 3924 covers the following articles of plastics:
Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee pots, teapots, sugar bowls, beer mugs, cups, sauce boats, fruit bowls, cruets, salt cellars, mustard pots, egg cups, teapot stands, table mats, knife rests, serviette rings, knives, forks and spoons.
Kitchenware such as basins, jelly moulds, kitchen jugs, storage jars, bins and boxes (tea caddies, bread bins, etc.), funnels, ladles, kitchen type capacity measures and rolling pins.
Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).
Hygienic and toilet articles (whether for domestic or non domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber pots, spittoons, douche cans, eye baths; teats for baby bottles (nursing nipples) and finger-stalls; soap dishes, towel rails, tooth brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls. However, such articles intended for permanent installation in or on walls or other parts of buildings (e.g., by screws, nails, bolts or adhesives) are excluded (heading 39.25).
EN 39.26 states, in relevant part:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14. They include: … (3) Statuettes and other ornamental articles.
EN 95.05 states, in relevant part, that heading 9505 covers the following:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non durable material. They include:
(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases.
(3) Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.
(4) Throw balls of paper or cotton wool, paper streamers (carnival tape), cardboard trumpets, “blow outs”, confetti, carnival umbrellas, etc.
…The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.
(B) Conjuring tricks and novelty jokes, e.g., packs of cards, tables, screens and containers, specially designed for the performance of conjuring tricks; novelty jokes such as sneezing powder, surprise sweets, water jet button holes and “Japanese flowers”.
This heading also excludes:
…(c) Packagings of plastics or of paper, used during festivals (classified according to constituent material, for example, Chapter 39 or 48) ….
If the instant fillable plastic containers are properly classified under heading 9505, HTSUS, they cannot be classified under headings 3924 or 3926, HTSUS. See Note 2(y) to chapter 39, HTSUS. Therefore, we must first consider whether the instant containers are classifiable in heading 9505, HTSUS.
The two commenters argue that the subject containers are specifically provided for as festive or entertainment articles in heading 9505, HTSUS, and are excluded from classification in heading 3926, HTSUS. The two commenters assert that the containers are not excluded from chapter 95 by virtue of note 2(y) to chapter 39 and note 1(w) to chapter 95, HTSUS, and cite to HQ H044635, supra, that we are now revoking. The commenters claim that the containers are festive articles used in celebration of Easter consistent with the two-prong test in Park B. Smith, Ltd. v. United States, 347 F.3d 922, 927 (Fed. Cir. 2003), citing Midwest of Cannon Falls v. United States, 122 F.3d 1423, 1429 (Fed. Cir. 1997). Alternatively, the commenters argue that if the containers are not deemed to be festive articles, they are classifiable as entertainment articles of heading 9505, HTSUS as in HQ H044635.
Heading 9505, HTSUS, provides, among other things, for festive, carnival, or other entertainment articles. EN 95.05 explains that such articles are typically made of non-durable material and include festive decorations used to decorate rooms, tables, or Christmas trees such as garlands, lanterns, tinsels, colored balls, and other figures. The heading excludes articles that contain a festive design, decoration, emblem or motif, and have a utilitarian function.
To be a festive article of heading 9505, HTSUS, an article must satisfy the “Federal Circuit Festive Article Test.” According to the Court of Appeals for the Federal Circuit (“CAFC”), to be a festive article of heading 9505, a product must be: (1) closely associated with a festive occasion and (2) be used or displayed principally during that festive occasion. See Park B. Smith, Ltd., 347 F.3d at 927, citing Midwest of Cannon Falls, 122 F.3d at 1429. “[C]losely associated with a festive occasion" requires that "the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant." See id.
First, we need to determine whether the physical appearance of the subject plastic containers is “so intrinsically linked” to Easter, the Christian holiday celebrating the resurrection of Jesus from the dead, that “their use during other time periods would be aberrant.” Id. In Midwest of Cannon Falls, 20 CIT 123, 131-32 (CIT 1996), rev’d on other grounds, 122 F.3d 1423, 1429 (Fed. Cir. 1997), the Court of International Trade (“CIT”) determined that a ceramic article shaped as a turkey, hollowed in the middle, and used as a trinket dish, planter, or pen holder was not a festive article of heading 9505, HTSUS. Although it featured an animal that was associated with Thanksgiving or autumn, it was “not so peculiarly stylized so as to limit its use to [Thanksgiving].” Id. Also, in Michael Simon Design, 30 CIT at 1170, 452 F. Supp. 2d at 1326-27, the court concluded that sweaters and a shirt featuring black cats did not satisfy the first prong of the “Federal Circuit Festive Article Test” because the particular images of black cats were “not so intrinsically linked to Halloween that wearing those items at other times of the year would evoke thoughts of Halloween or seem aberrant.”
Similarly, the plastic containers that are egg-shaped or carrot-shaped, or in the shape of a bunny, and can be filled with small items, feature animals that are associated with Easter or the spring, but are not “so peculiarly stylized” to limit their use to Easter. Midwest of Cannon Falls, 20 CIT at 131-32. Even though these containers are egg-shaped, carrot-shaped, or in the shape of a bunny, their physical appearance does not limit their use to the Easter celebrations, and it would not be “aberrant” to use them throughout the year. On the other hand, the containers shaped to resemble the characters of SpongeBob SquarePants, Dora the Explorer, Disney Princess, Disney/Pixar Cars, and Elmo have nothing to do with Easter and do not evoke thoughts of Easter. In sum, even though color eggs are an Easter motif, the instant plastic containers are not so “intrinsically linked” to Easter that their use other times of the year would be “aberrant.”
Moreover, the containers do not satisfy the second prong of the “Federal Circuit Festive Article Test” because they are not used or displayed principally during the Easter religious holiday and celebrations. These containers hold various items such as coins and ponytail holders all year. They can be filled with candy, ponytail holders, cards, animal erasers, cookies, and small gifts to give away as prizes at children’s parties or parades any time during the year. Such types of containers are advertised as “fun for any occasion, they can be filled with surprises and special gifts,” as “easy to fill with candy, toys, and more,” and as “[p]erfect for Easter decorating, Easter baskets, prize boxes, giveaways, and so much more.” The containers are not sold exclusively and used principally during Easter.
Arguendo, the containers could be described as festive or entertainment articles due to being egg-shaped or due to any Easter design or motif pictured on them, they are excluded from heading 9505, HTSUS, by virtue of note 1(w) to chapter 95, HTSUS and EN 95.05. The containers snap closed to secure and protect the small articles inside. They are functional and utilitarian articles, excluded as such.
Further, the instant egg-shaped containers are not festive, carnival, or other entertainment articles within the meaning heading 9505, HTSUS. Easter is a religious holiday, not a party, festival or carnival, and the egg hunt is a game, not a party favor. The instant egg-shaped containers are not festive decorations such as garlands or lanterns used to decorate rooms and tables. They are not decorative articles for Christmas or cake decorations traditionally used with a festival. See EN 95.05(A)(1). They are not articles traditionally used at Christmas festivities such as artificial Christmas trees, nativity scenes, Christmas stockings, or father Christmases. See EN 95.05(A)(2). They are not non-textile articles of fancy dress such as masks, false ears and noses, wigs, false beards and moustaches. See EN 95.05(A)(3). They are not carnival articles such as confetti, carnival umbrellas, cardboard trumpets, or throw-balls of paper or cotton-wool. See EN 95.05(A)(4). They are not conjuring tricks and novelty jokes such as packs of cards, sneezing powder, or surprise sweets.
See EN 95.05(B). Egg-shaped containers can be used to hold various items. Like an egg-shaped carton that holds L’eggs brand pantyhose, they are not festive articles, party favors, or entertainment articles just because they are egg-shaped.
Therefore, the instant containers are not a festive or other entertainment article of heading 9505, HTSUS, and are not excluded from chapter 39, HTSUS, pursuant to note 2(y) to this chapter.
We will next determine whether they are classifiable under
heading 3924, HTSUS, as household articles of plastics or under heading 3926, HTSUS, as other articles of plastics.
Heading 3924, HTSUS, covers tableware, kitchenware, and other household articles “such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).” EN 39.24. The essential characteristics of these listed articles are that they are of plastics, are used in the household, and are reusable. See HQ H251141, dated December 15, 2014 (classifying portable plastic air freshener units in heading 3926, HTSUS and not in heading 3924, HTSUS, because they did not belong to a class of product principally used in the home and were not of the same class or kind as the exemplars of household articles listed in EN 39.24). According to EN 39.24, household articles are utilitarian and decorative in character and are closely associated with household functions and activities such as dustbins and buckets for cleaning, watering cans for watering plants, and food storage containers for storing food products. Unlike the exemplars listed in EN 39.24, the plastic fillable containers are not strictly or primary used in the household. The fillable containers are designed to facilitate the consumer’s personal transportation and storage of candy, and other small food or non-food items, and are usable at home, in a car, in an office, in a garden, and in a variety of other locations. As a result, the containers are not household articles of plastics within the meaning of heading 3924, HTSUS.
We next turn to heading 3926, HTSUS, which is a residual provision and covers articles of plastics not elsewhere specified or included. Heading 3926 is a general heading or basket provision, as evidenced by the word “other.” See Item Co. v. United States, 98 F.3d 1294, 1296 (Fed. Cir. 1996). Classification of imported merchandise in a basket provision is only appropriate if there is no tariff provision that covers the merchandise more specifically. See EM Indus., Inc. v. United States, 22 CIT 156, 165 (1998). Since the plastic containers are not included in headings 3924 and 9505, HTSUS, they fall by default into
heading 3926, HTSUS. See HQ H177798, dated February 5, 2015 (classifying a plastic candy dispenser under heading 3926, HTSUS, as an inexpensive but functional device for the storage, transport, and dispensing of candy);
NY R03928, dated May 16, 2006 (classifying two-piece egg-shaped hollow plastic containers colored and printed to resemble sports balls and used as decorations for sports themed parties in subheading 3926.40.00, HTSUS);
NY K88154, dated August 18, 2004 (classifying animal decorative plastic containers designed to resemble the traditional Easter egg and to be filled with small items in subheading 3926.40.00, HTSUS); NY M85563, dated August 18, 2006 (classifying plastic egg-shaped containers including one styled as a carrot, that are opened in half and can be filled with candy or other small treats in subheading 3926.40.00, HTSUS); NY L88278, dated November 9, 2005 (classifying two-piece egg-shaped plastic containers colored and printed to resemble sports balls to be used as decorations for sports themed parties and to be filled with small items such as candy or change in subheading 3926.40.00, HTSUS). Just like the plastic containers in these rulings, the instant containers can be opened and filled with candy and/or trinkets, and their primary purpose is to load and carry small items.
Some of the containers are packaged in a polybag for retail sale (see
HQ 044635, NY N013622, NY N012286, NY D81320, supra), in a reusable carry bag of vinyl with a zippered closure (see NY N013622, supra), in a clear bag with cardboard header (see NY D81320, supra), in a plastic net drawstring bag with stuffed textile representations of a rabbit’s head, feet, and legs attached in the appropriate places of the bag (see HQ 961700, supra), in a disposable netting (see NY N021076, supra), or contain ponytails (see NY N021076, supra). The disposable netting, polybags, and other plush appear to be packaging of the merchandise and under GRI 5, they are classified with the goods. The drawstring bag, the reusable carry bag of vinyl, the clear bag with cardboard header, and ponytails are another component of the entire good, and thus, these items must be classified in accordance with GRI 3. Consistent with the EN (X) to GRI 3(b), the goods are put up in sets for retail sale because they consist of at least two different articles that are prima facie classifiable in different headings (for example: plastic containers in 3926, HTSUS, plastic bags in 4202, HTSUS, and ponytail holders in 6117, HTSUS); are put up together to facilitate the transportation of trinkets; and are put up in a manner suitable for sale directly to users without repacking. Thus, we need to address whether these bags are classified as part of the retail set or separately. Pursuant to GRI 3(b), if the fillable plastic containers provide the set with its essential character, then the entire set should be classified under the heading for the container, which we determined was heading 3926, HTSUS. If not, then the set should be classified according to that other item that provides the essential character.
In Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1299-1300 (CIT 2012), the CIT held that a GRI 3(b) set should be classified according to the item that provided the essential character. Essential character is determined based on a review of “the nature of the [good], its bulk, quantity, weight or value, or by the role of a constituent [good] in relation to the use of the goods.” Id. at 1300. This list is not exhaustive. 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.’ Further, ‘the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article.’” Structural Indus., Inc. v. United States, 29 CIT 180, 185, 360 F. Supp. 2d 1330, 1336 (2005) (citations omitted).
While the plastic drawstring bag, the vinyl carry bag, and the clear bag with cardboard header are reusable, they contain the actual article being sold, namely the plastic containers. We note that by application of GRI 3(b), the component that provides the subject merchandise with its essential character would be the fillable plastic container because it is the more substantial article and the “most outstanding and distinctive characteristic” of the set that will be filled with candy and other small gifts after purchase. This is also the case for the ponytail holder-filled container. The containers provide the bulk and weight of the article and are more important in relation to the role of the good.
Therefore, we conclude that the instant fillable plastic containers are provided for under subheading 3926.40.0090, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), as “[o]ther articles of plastics … [s]tatuettes and other ornamental articles: Other.”
HOLDING:
By application of GRIs 1, 3(b), 5, and 6, the subject fillable plastic containers (sold with or without bags, and with or without ponytail holders) are classified in heading 3926, HTSUS, specifically under subheading 3926.40.0090, HTSUSA, which provides for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles: Other." The 2019 rate of duty is 5.3% ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N018731, dated November 8, 2007; NY N013622, dated July 25, 2007; NY N012286, dated July 5, 2007; NY N021076, dated January 16, 2008; NY H86212, dated January 14, 2002; NY N025433, dated April 25, 2008;
NY D81320, dated September 8, 1998; NY C83630, dated February 4, 1998;
HQ H044635, dated February 18, 2009, and HQ 961700, dated February 19, 1999, are hereby REVOKED.
NY N007698, dated March 30, 2007, is hereby MODIFIED.
In accordance with 19 U.S.C. § 1625(c), these rulings will become effective 60 days after their publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
Cc: Ms. Miriam Espinoza
Intradeco Apparel, Inc.
9500 N.W. 108th Ave.
Miami, FL 33178
Ms. Julie Gimm
BDP International, Inc.
2721 Walker N.W.
Grand Rapids, MI 49504
Mr. Ken August
Ms. Irene Tsiavos
Easter Unlimited, Inc.
80 Voice Road
Carle Place, NY 11514
Mr. Troy D. Crago
Atico International USA, Inc.
501 South Andrews Avenue
Fort Lauderdale, FL 33301
Ms. Laurie Fassett
Paper Magic Group
401 Adams Avenue
Scranton, PA 18510
Mr. Robert A. Calandra, Attorney at Law
4 Henning Drive
Fairfield, New Jersey 07004
Ms. Lynn O’Beirn
Four Star International Trading Company
3330 East 79th Street
Cleveland, Ohio 44127
Ms. Leah Cantero
Williams-Sonoma, Inc.
151 Union Street
Ice House 1 – 7th Floor
San Francisco, CA 94111
Mr. Brian Linn
PTI Group, Inc.
2909 Anthony Lane
Minneapolis, MN 55416