CLA-2 OT:RR:CTF:TCM H045873 RES
Ms. Valerie Beumer
Scarbrough Int’l., Ltd.
10841 Ambassador Drive
Kansas City, MO 64153
RE: Revocation of NY K89535, dated October 5, 2004.
Dear Ms. Beumer:
This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York (“NY”) Ruling letter K89535, dated October 5, 2004, regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of an air freshener. The article in NY K89535 was classified as a toy under heading 9503, HTSUS. We have determined that NY K89535 was in error. Therefore, this ruling revokes K89535.
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, notice of the proposed action was published on December 28, 2011, in Volume 46, Number 1, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In NY K89535, the product was described as follows:
The subject merchandise is described as an air freshener that will hang from the rear view mirror in a car. This item . . . consists of a scented card inserted into a sewn fabric toy animal. The toy animal and scented card will be imported together with the entire piece placed on a backing card.
The toy animal air freshener was classified under heading 9503, HTSUS, as “[o]ther toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.”
ISSUE:
Whether the air freshener article at issue is classifiable under heading 3307, HTSUS, or under heading 9503, HTSUS?
LAW AND ANALYSIS:
Classification under the 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 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 2 through 6 may be applied in order.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following 2011 HTSUS provisions are under consideration:
3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scaled (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Note 3 to Chapter 33, HTSUS, provides in pertinent part:
Headings 3303 to 3307 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put in packings of a kind sold by retail for such use.
(Emphasis in original).
The article at issue is composed of two parts: a scented card and a miniature toy animal. Analyzing the article first under GRI 1, there is no specific provision in the HTSUS that completely describes this product. Likewise, the article is not classifiable under GRI 2(a) or 2(b) because it is not in an unassembled or incomplete state, but is imported as a complete article and is a composite of parts which are classifiable under two or more headings. GRI 2(b) instructs that “[t]he classification of goods consisting of more than one material or substance shall be [determined] according to the principles of rule 3.”
GRI 3(a) does not apply because there is no heading that provides a specific description that clearly identifies an article that is a composite of a scented card and a miniature toy animal. Thus, the article at issue is analyzed under GRI 3(b), because it is a composite good consisting of different components each of which, if imported separately, would be classifiable under different headings. According to GRI 3(b), “mixtures, composite goods consisting of different materials or made up of different components . . . shall be classified as if they consisted of the material or component which gives them their essential character . . . .” Thus, to determine under which heading to properly classify the entire toy animal air freshener, we must determine which component gives the article its essential character: the scented card or the miniature toy animal.
Although the GRI’s do not provide a definition of “essential character,” the EN (VIII) of GRI 3(b) provides guidance. According to this EN, the 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 goods.” This is known as the “essential character test” and the application of this test requires a fact-intensive analysis. Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1337 (Fed. Cir. 2007). Many factors should be considered when determining the essential character of an article, including but not limited to those factors enumerated in EN (VIII) to GRI 3(b). Id. Headquarters (“HQ”) ruling H061205, dated August 10, 2009, involved an essential character analysis of a tea infuser set. This ruling was a straight-line analysis of the factors listed in the EN (VIII) to GRI 3(b): (1) what component makes up the bulk of the set; (2) quantity of goods in the set; (3) weight of the components; (4) value of the components; and (5) role of the constituent material in relation to the use of the goods. This ruling also teaches that it is neither necessary for all the factors to favor one component over another in making a determination nor are all factors determinative in the analysis
From both EN (VIII) of GRI 3(b), rulings, and caselaw, the pertinent factors used in analyzing which component gives a composite article the essential character include: (1) the bulk or amount each component contributes physically to the composite article; (2) weight of the components relative to the whole composite article; (3) the quantity of components; (4) value of the components; (5) role of the constituent material in relation to the use of the goods; and (6) nature of the components. Applying these factors, we can determine which component provides the essential character of the air freshener article at issue. As described previously, the air freshener is composed of a scented air freshener card and a miniature toy animal. The function of the complete article is to hang from a rear view mirror and scent the inside of an automobile. The analysis focuses on whether the scented card or the miniature toy animal imparts the essential character of the air freshener.
(1) & (2) Bulk and Weight of the Components. Based upon the description in NY K89535 of the physical sample provided, the miniature toy appears to comprise a larger part of the bulk and the weight of the composite article because the scented card is inserted into the miniature toy. Additionally, the miniature toy is the predominant physical part of the retail package. Thus, these factors weigh in favor of the miniature toy.
(3) Quantity of Components. This factor is not relevant in this case because each composite article for retail sale has one scented card paired with one miniature toy animal.
(4) Value of the Components. There is no break down of the individual costs of each component. Thus this factor is not helpful in determining essential character.
(5) Roles of the Components. The composite air freshener article has both a utilitarian function of providing scent and an apparent amusement function as a toy. However, we find that the primary function of the composite article is the scenting of an automobile because the main point of having an air freshener is to provide a scent that fills an enclosed space, such as a room or car. Although each component contributes separately to the two functions, the scented card provides the sole contribution to the primary function of the composite article. On its own without the inserted scented card the miniature toy animal does not have any scent and thus, cannot provide a scent that would fill an enclosed space. Moreover, when the article is out of the packaging in the open, the predominant feature is not the miniature toy animal but the smell of the scent it provides—one would notice the scent the article provides upon entering the interior of an automobile first before noticing the physical miniature toy.
In addition, the fact that the retail package of the article has the words “air freshener” in it gives a reasonable impression that the primary function of the article is an air freshener and not a toy that is meant to be played with. The name of a composite article can be persuasive indicia of essential character. Home Depot U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278, 1294 (Ct. Int’l Trade 2007). The “air freshener” part of the package does not give any indication that this is referring to a toy. It is a reasonable assumption that a customer would perceive that the article is a scented air freshener that looks like a toy and not a toy that just happens to be able to scent the interior of a car. Thus, this factor weighs in favor of the scented card.
(6) Nature of the Components. Another factor in favor of the scented card is that the composite article is designed around the function of providing a scent. The complete article is designed to have a slit in the miniature toy animal where the scented card will be inserted and it comes with a looped string that has the function of hanging the complete article on the rear view mirror, where it is supposed to be placed so that it can passively scent the inside of an automobile interior. There is nothing to indicate that the miniature toy animal is to be handled and hence, played with. These custom design aspects demonstrate an emphasis on the scent providing functions of the air freshener. As to the miniature toy animal’s design in regard to its actual shape and colors, these features are what gives it an aesthetic functionality and are not additional design features that emphasize anything beyond its own appeal as providing something that reflects the aesthetics of personal taste. Thus, because the composite article is designed around the function of providing a scent for an enclosed area, this is a factor that weighs in favor of the scented card.
In summary, although the miniature toy animal component comprises the bulk and weight of the article, this is outweighed by the following factors: the fact that the article has features, such as the hanging string and slit for the scented card, that are specifically incorporated to facilitate the air freshener function; the fact that the article’s scent is the predominant noticeable feature of the article outside the packaging; and the fact that the article is marketed and sold as an air freshener and not simply as a toy. Upon consideration of the totality of these factors in favor of the scented card, CBP finds that the essential character of the miniature toy animal air freshener is imparted by its scented card.
Articles, such as the air freshener at issue here, which are infused with scented oils and principally used to perfume or deodorize a room and are packaged for retail sale, are pursuant to Note 3 to Chapter 33, HTSUS, prima facie classifiable under heading 3307, HTSUS. See NY 801980, dated September 20, 1994; NY N009558, dated May 1, 2007. See also HQ H105015, dated December 7, 2010 (noting that a room deodorizer under heading 3307, HTSUS, is a preparation that disperses chemical preparations into the air to mask or chemically remove odor molecules).
Therefore, the article in NY K89535 is to be classified under heading 3307, HTSUS.
HOLDING:
Pursuant to GRI 3(b), the air freshener article at issue is classified under heading 3307, specifically, subheading 3307.49.0000, HTSUSA, as “[p]re-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: [p]reparations for perfuming or deodorizing rooms, including odoriferous preparations used during religious rites: [o]ther.” The general, column one, rate of duty is 6 percent ad valorem.
EFFECTS ON OTHER RULINGS:
NY K89535, dated October 5, 2004, 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,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division