CLA-2 OT:RR:CTF:FTM H300680 EGJ
Geoffrey Greenberg
Creative Designs International Ltd.
207-208 East Pennsylvania Blvd.
Feasterville, PA 19053
RE: Modification of PC K88915: Classification of Plastic Play Food in a Backpack
Dear Mr. Greenberg:
We have reviewed unpublished Pre-Classification Ruling (PC) K88915, dated September 29, 2004, issued to you concerning the tariff classification of different types of merchandise, including Subway® plastic play food packaged inside of a plastic backpack. In the pre-classification ruling, CBP classified the play food and the backpack together under heading 9503, HTSUS. We have reviewed PC K88915 and find it to be in error with regard to the tariff classification of the Subway® plastic play food and backpack. For the reasons set forth below, we hereby modify PC K88915.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on November 14, 2018, in Volume 52, Number 46, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In PC K88915, the relevant merchandise consists of Subway® brand plastic play food packaged inside of a clear plastic backpack. According to the labeling on the sample, there are 29 pieces of plastic play food. The play food includes plastic cheese, lettuce, cold cuts, bread, and condiment containers. A picture of the merchandise is provided below:
ISSUE:
What is the tariff classification of the Subway® brand plastic play food packaged inside of a clear plastic backpack under the HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). 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 HTSUS provisions at issue are as follows:
4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
Other:
4202.92 With outer surface of sheeting of plastics or of textile materials:
Travel, sports and similar bags:
4202.92.45 Other.
* * *
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
* * *
Additional U.S. Note 1 to Chapter 42 states that:
1. For the purposes of heading 4202, the expression "travel, sports and similar bags" means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers (emphasis added).
Note 1(d) to Chapter 95 provides as follows:
This chapter does not cover:
(d) Sports bags or other containers of heading 4202, 4303 or 4304;
Note 4 to Chapter 95 provides as follows:
Subject to the provisions of Note 1 above, heading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of General Interpretative Rule 3(b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
* * *
GRI 3(b) provides as follows:
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:
…
(b) 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.
GRI 5 provides as follows:
In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;
(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.
* * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to GRI 3(b) state, in pertinent part, as follows:
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) 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.
(X) For the purposes of this Rule, the 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. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(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 (e.g., in boxes or cases or on boards).
The term therefore covers sets consisting, for example, of different foodstuffs intended to be used together in the preparation of a ready to eat dish or meal.
The ENs to GRI 5 provide as follows:
RULE 5 (a)
(Cases, boxes and similar containers)
(I) This Rule shall be taken to cover only those containers which:
(1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article they contain;
(2) are suitable for long term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;
(3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;
(4) are of a kind normally sold with such articles; and
(5) do not give the whole its essential character.
(II) Examples of containers, presented with the articles for which they are intended, which are to be classified by reference to this Rule are:
(1) Jewelry boxes and cases (heading 71.13);
(2) Electric shaver cases (heading 85.10);
(3) Binocular cases, telescope cases (heading 90.05);
(4) Musical instrument cases, boxes and bags (e.g., heading 92.02);
(5) Gun cases (e.g., heading 93.03).
(III) Examples of containers not covered by this Rule are containers such as a silver caddy containing tea, or an ornamental ceramic bowl containing sweets.
RULE 5 (b)
(Packing materials and packing containers)
(IV) This Rule governs the classification of packing materials and packing containers of a kind normally used for packing the goods to which they relate. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use, for example, certain metal drums or containers of iron or steel for compressed or liquefied gas.
(V) This Rule is subject to Rule 5 (a) and, therefore, the classification of cases, boxes and similar containers of the kind mentioned in Rule 5 (a) shall be determined by the application of that Rule.
* * *
In PC K88915, CBP classified Subway® brand plastic play food and a clear plastic backpack together as a toy under heading 9503, HTSUS. There are three HTSUS provisions which may allow the instant merchandise to be classified together:
1) Note 4 to Chapter 95, 2) GRI 3(b) or 3) GRI 5. Note 4 to Chapter 95 only applies to toys packaged together with other items which do not constitute a GRI 3(b) set. Therefore, we must first consider whether the play food and the backpack constitute a GRI 3(b) set.
We note that in order to be classified as a GRI 3(b) retail set, the subject merchandise must meet three requirements. First, the merchandise must consist of two or more articles which are prima facie classifiable in different headings. Second, the merchandise must consist of articles put up together to meet a particular need or to carry out a specific activity. Finally, the merchandise must be suitable for direct sale to users without repacking. See Estee Lauder v. United States, 815 F.Supp. 2d 1287, 1294 (Ct. Int’l Trade 2012) (citing to the ENs to GRI 3(b)).
The plastic play food and the backpack meet the first and third criteria. The play food is classified under heading 9503, HTSUS, and the backpack is classified under heading 4202, HTSUS. Further, they are packaged together and are suitable for direct sale to users without repacking.
However, the play food and backpack do not meet the second criterion necessary for classification as a GRI 3(b) retail set. They are not packaged together to meet a particular need or to carry out a specific activity. The play food is packed very tightly inside of the backpack. Examining the sample in our office, we struggled to fit all of the play food back inside of the backpack after removing it. We take the view that the consumer will likely store the play food in a container other than the instant backpack. Moreover, the play food and the backpack are not put up to meet a particular need or to carry out a specific activity. If a consumer is pretending to be a sandwich maker at a Subway® restaurant, then there is no connection to a backpack involved in that activity. For these reasons, we find that the play food and backpack do not constitute a GRI 3(b) retail set.
As we have determined that this merchandise cannot be classified together under GRI 3(b), we now turn to Note 4 to Chapter 95. Note 4 to Chapter 95 states that, subject to Note 1 to Chapter 95, items packaged together with toys for retail sale may be classified under heading 9503, HTSUS, so long as the toy and the item do not constitute a GRI 3(b) set and so long as the combination has the essential character of a toy. We take the view that the play food and the backpack are not a GRI 3(b) set and that the combination has the essential character of a toy.
However, Note 4 states that it is subject to the exclusions of Note 1 to Chapter 95. Note 1(d) excludes bags of heading 4202, HTSUS, from being classified in Chapter 95. Therefore, the backpack and play food combination cannot be classified together under heading 9503, HTSUS, by application of Note 4 to Chapter 95.
Finally, we turn to GRI 5, which applies to the classification of certain packaging. GRI 5(a) states that containers such as camera cases, musical instrument cases, gun cases and similar containers which are specially shaped or fitted to contain a specific article or set of articles, which are suitable for long-term use and are entered with the articles for which they are intended should be classified together with the article that they contain, so long as the container does not give the combination its essential character. The ENs to GRI 5(a) give examples of containers which are classified together with their contents under this provision, such as jewelry cases, electric shaver cases, binocular cases and telescope cases.
Although the clear backpack is suitable for long-term use, we find that it is not specially shaped or fitted to contain the play food. The examples of containers listed above are either shaped to precisely fit their contents, or else they are equipped with inserts that fit the contents. The backpack is not specially shaped or fitted to contain the play food. Therefore, the backpack cannot be classified together with the play food by application of GRI 5(a).
GRI 5(b) states that normal packaging can generally be classified together with its contents. However, GRI 5(b) does not apply to packaging which is suitable for repetitive use. We note that the backpack is sturdy and is suitable for repetitive use. Therefore, we cannot classify the backpack and the play food together by application of GRI 5(b). For all of the aforementioned reasons, we must classify the backpack separately from the play food.
HOLDING:
By application of GRIs 1 and 6, the backpack is classified under subheading 4202.92.45, HTSUS, which provides for, in pertinent part, for “[B]ackpacks …: Other: With outer surface of sheeting of plastics or of textile materials: Travel, sports and similar bags: Other.” The 2019 column one, general rate of duty is 20 percent ad valorem.
By application of GRIs 1 and 6, the plastic play food is classified under subheading 9503.00.00, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.” The 2019 column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
PC K88915, dated September 29, 2004, is hereby modified with regard to the tariff classification of the Subway® plastic play food and backpack.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division