CLA-2 OT:RR:CTF:TCM H173015 EG
Lawrence Mushinske
285 South Van Dien Ave.
Ridgewood, NJ 07450
RE: Classification of a Fragrance Mister Shelf
Dear Mr. Mushinske:
This is in response to your request of May 16, 2011, on behalf of Sobel Shipping Co, Inc., for a binding ruling on the tariff classification of the Walmart Fragrance Mister Shelf (the fragrance shelf) from China under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject merchandise is a shelf which fits into a standard Walmart floor standing fixture. The shelf serves as an interactive fragrance display. Attached to the bottom of the shelf is a unique system of ten spray nozzles. Once in the store, each spray nozzle will be connected to an eight ounce fragrance bottle. When the consumer passes her hand underneath a specific spray nozzle, an electronic motion sensor activates the spray nozzle which then dispenses a small mist of that particular fragrance. The fragrance shelf is powered by a power cord which plugs into a standard wall outlet.
The fragrance shelf is made of steel, which comprises ninety percent of the shelf’s weight and value. The top surface is made of acrylics with dividers to separate the perfumes which will be displayed for retail sale. At the back of the shelf is a raised, rectangular covered compartment which will house the eight ounce fragrance bottles. The eight ounce fragrance bottles are not imported together with the fragrance shelf.
Underneath the front lip of the shelf are eight spray nozzles. Once installed, the eight ounce fragrance bottles will be connected to the spray nozzles with plastic tubing that runs underneath the shelf. The covered compartment also houses a master control board which controls the function of the spray nozzles. The fragrance bottles will be concealed from view once the lid is closed on the covered compartment. The Walmart store will then place eight perfumes in retail packaging on the shelf above the spray nozzle which is connected to its respective fragrance reservoir.
ISSUE:
Is the subject fragrance shelf classified by its shelf component under heading 9403, HTSUS, or by its scent sprayer component under heading 9616, 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.
The HTSUS provisions under consideration are as follows:
9403 Other furniture and parts thereof …
* * *
9616 Scent sprayers and similar toilet sprayers, and mounts and heads there[of]; powder puffs and pads for the application of cosmetics or toilet preparations …
* * *
The subject fragrance shelf is composed of two components which are prima facie classifiable in different headings, i.e., the system’s shelf portion (heading 9403, HTSUS) and the system’s scent sprayer portion (heading 9616, HTSUS). As no single heading describes the merchandise in its entirety, it is classified applying GRI 3(b), as if consisting of the component which gives the good its essential character.
GRI 3(b) provides, in pertinent part:
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:
…
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.
The Explanatory Notes to GRI 3(b) state, in relevant part:
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.
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.
As stated by the Court of International Trade in Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (2005), “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.” See also Conair Corporation v. United States, 29 Ct. Int’l Trade 888, 895 (2005) (discussing "the concept of ‘essential character’ found in GRI 3(b)”). The factors that determine an article’s essential character “vary between different kinds of goods.” See EN (XII) to GRI 3. Examples of such factors include the bulk, quantity, and weight of a material, as well as the role of the material in relation to the use of the product. See 3G Mermet Fabric Corp. v. United States, 135 F. Supp. 2d 151, 159 (Ct. Int’l Trade 2001).
The subject merchandise is a fragrance shelf. Applying the essential character factors, we note that ninety percent of the fragrance shelf’s value and weight is the steel shelf. However, the purpose of the subject merchandise is to market fragrances. The purpose of the steel shelf component is to provide support for the fragrances and a structure for the sprayer nozzles. The shelf serves a subsidiary role to the scent sprayer because the scent sprayer truly markets the fragrances. The scent sprayer enables the consumer to smell the ten different fragrances prior to buying the fragrance. As such, the scent sprayer imparts the essential character to the fragrance shelf. The fragrance shelf is classified as a scent sprayer of heading 9616, HTSUS.
HOLDING:
By application of GRI 3(b), the fragrance shelf is classified under heading 9616, HTSUS, specifically in subheading 9616.10.00, HTSUS, which provides in pertinent part for “Scent sprayers and similar toilet sprayers …: Scent sprayers and similar toilet sprayers ….” The 2011 column one, general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
A copy of this ruling letter should be attached to the entry documents filed
at the time the goods are entered. If the documents have been filed without a copy, this
ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch