CLA-2 CO:R:C:F 954017 LPF
4421.90.5000; 4818.30.0000;
Mr. Gary E. Crawford
A.N. Deringer, Inc.
HC 76 P.O. Box 625
Jackman, ME 04945-0559
RE: Classification of pepper, salt, moist towelettes, plastic
utensils, toothpicks, and paper napkins; Heading 0904, pepper;
Heading 2501, salt; Heading 3401, paper or wadding,
impregnated, coated, or covered with soap or detergent;
Heading 3924, tableware, kitchenware, of plastics; Heading
4421, other articles of wood, toothpicks; Heading 4818,
tablecloths and table napkins; GRI 3(b) set for retail sale;
Subheading 9801.00.10; Superscope; HRL 951281
Dear Mr. Crawford:
This is in response to your letter of March 22, 1993, regarding
the proper classification, under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA), of various assortments of
plastic utensils some of which include salt, pepper, towelettes,
toothpicks or paper napkins. You submitted samples with your
request for a binding ruling.
FACTS:
The merchandise at issue includes four product assortments for
use in the fast food industry by aircraft, trains, etc. Assortment
1 consists of a plastic knife, fork, and spoon, in plastic
packaging. In one scenario the articles are manufactured in the
United States, packaged in Canada, and returned to the U.S., while
in the other they are manufactured and packaged in Canada.
Assortment 2 consists of a plastic knife, fork, and spoon with
a paper napkin, in plastic packaging. The articles are
manufactured and packaged in Canada.
Assortment 3 consists of a plastic knife, fork, and spoon with
a paper napkin, a packet of salt, a packet of ground black pepper,
and a wooden toothpick, in plastic packaging. The articles are
manufactured and packaged in Canada.
-2-
Assortment 4 consists of the articles included in Assortment
3 plus a moist towelette. We assume the towelette is coated or
covered with either soap or detergent.
ISSUES:
Whether the merchandise is classifiable as a set for retail
sale or is classifiable under the various headings providing for
each of its individual components.
Whether the U.S. origin knife, fork, and spoon of Assortment
1 will qualify for the duty exemption under subheading 9801.00.10,
HTSUSA, when after being packaged together in Canada they are
returned to the U.S.
LAW AND ANALYSIS:
Tariff Classification
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. Most imported 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 GRI's may then be applied. The
Explanatory Notes (EN's) to the Harmonized Commodity Description
and Coding System, which represent the official interpretation of
the tariff at the international level, facilitate classification
under the HTSUSA by offering guidance in understanding the scope
of the headings and GRI's.
Each assortment consists of various components which are
classifiable as follows: the plastic knives, forks, and spoons in
3924 as tableware or kitchenware of plastics; the paper napkins in
4818 as table napkins; the salt in 2501; the pepper in 0904; the
wooden toothpick in 4421 as other articles of wood; and the
towelette in 3401 as paper, wadding, etc., impregnated, coated or
covered with soap or detergent. Since separate HTSUSA headings
provide for each item, the articles are classified by applying GRI
3(a) which explains, in pertinent part, that merchandise which is
classifiable under two or more headings is classified under the
heading which provides the most specific description of the
article. However, all such headings are regarded as equally
specific when each refers to only part of the items in a set put
up for retail sale.
-3-
In accordance with EN X to GRI 3(b), a set put up for retail
sale must: (a) contain at least two items classifiable in different
headings; (b) contain items put up together to meet a particular
need or carry out a specific activity; and (c) be put up for sale
directly to users without repacking.
With the exception of Assortment 1, each assortment contains
at least two items classifiable in different headings which,
together, are ready for direct sale without repacking. We note
that since Assortment 1 does not contain at least two items
classifiable in different headings, it fails as a set and we
classify each item pursuant to GRI 1.
In regard to Assortment 2, the plastic utensils and the paper
napkin apparently are put up together to carry out the specific
activity of eating a meal. Although the napkin performs a cleaning
function, it allows the meal to be eaten neatly and comfortably.
For these reasons, the articles are used and sold together.
Because Assortment 2 is a set, and the headings under which
the items could be classified refer to only part of the items in
the set, we turn to GRI 3(b) to classify the merchandise. This
provides that the set is classified by the item which gives the
set its essential character. "Essential character" is the
attribute which strongly marks or serves to distinguish what an
article, or set, is. EN VIII to GRI 3(b) explains that essential
character may 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 article.
Because the plastic utensils represent a significant amount of
the bulk, weight and value of the assortment and based on use
distinguish the article, they impart the essential character.
Accordingly, Assortment 2 is classified in heading 3924, the
heading providing for the plastic utensils. The appropriate
subheading is 3924.10.50.
In regard to Assortments 3 and 4, the plastic utensils, salt
and pepper, and other items are not necessarily put together for
a specific activity, but rather serve divergent functions or needs.
While the utensils actually are used to eat a meal, the salt and
pepper are used as seasonings to flavor or prepare a meal.
Assortments 3 and 4 fail as a set, and we return to GRI 1 to
classify each item separately in its own appropriate heading.
-4-
Duty-Free Treatment under Subheading 9801.00.10, HTSUSA
Subheading 9801.00.10, HTSUSA, provides for the free entry of
products of the U.S. exported and returned without having been
advanced in value or improved in condition by any process or
manufacture or other means while abroad, provided the documentary
requirements of section 10.1, Customs Regulations (19 CFR 10.1)
are met.
You indicate that the U.S. origin plastic utensils of
Assortment 1 merely will be packaged together in Canada and then
returned to the U.S. In this case, the packaging neither advances
the products in value nor improves them in condition. See
Headquarters Ruling Letter 951281, issued June 18, 1992, where in
citing Superscope, Inc. v. United States, 13 CIT 997, 727 F. Supp.
629 (1989), it was determined that U.S. origin inserts merely
packaged abroad in toy sets and returned to the U.S. could be
afforded duty-free treatment under 9801.00.10.
If the documentation requirements of 19 CFR 10.1 are met and
the district director of Customs at the port of entry is satisfied
that the items are, in fact, of U.S. origin, the plastic utensils
should be afforded a free rate of duty.
HOLDING:
Assortment 1 - Plastic knife, fork, and spoon
The assortment is classified in subheading 3924.10.5000,
HTSUSA, as tableware, kitchenware...of plastics:...other. Pursuant
to the United States - Canada Free Trade Agreement (CFTA), the
merchandise will be dutiable at 1.7 percent ad valorem if it is an
originating good under General Note 3(c)(vii)(B), HTSUSA.
An allowance in duty may be made under subheading 9801.00.10,
HTSUSA, for the cost or value of U.S. origin utensils merely
packaged together in Canada and returned to the U.S.
Assortment 2 - Plastic knife, fork, and spoon with paper napkin
The assortment is classified, as a whole, in subheading
3924.10.5000, HTSUSA, as tableware, kitchenware...of
plastics:...other, dutiable at 1.7 percent ad valorem if qualifying
as originating goods under the CFTA.
-5-
Assortment 3 - Plastic knife, fork, and spoon with paper napkin,
package of salt, package of pepper, and wooden toothpick;
Assortment 4 - Same as Assortment 3 plus a moist towelette
1. Plastic utensils 3924.10.5000- Tableware, kitchenware...
of plastics:...other, dutiable at 1.7
percent ad valorem if qualifying under
the CFTA.
2. Paper napkin 4818.30.0000- Toilet paper,...table
napkins,...: tablecloths and table
napkins, at a free rate of duty if
qualifying under the CFTA.
3. Package of salt 2501.00.0000- Salt, at a free rate
of duty.
4. Package of pepper 0904.12.0000- Pepper...: crushed or
ground, at a free rate of duty.
5. Wooden toothpick 4421.90.5000- Other articles of
wood: other: toothpicks...:
toothpicks, dutiable at 2.1 percent
ad valorem if qualifying under the
CFTA.
6. Moist towelette 3401.11.5000- Soap;...paper, wadding,
...impregnated, coated or covered with
soap or detergent:...for toilet use...:
other, at a free rate of duty if
qualifying under the CFTA.
Sincerely,
John Durant, Director