CLA-1: OT: RR: CTF: TCM H251141 ERB
Port Director, Port of Laredo
U.S. Customs and Border Protection
109 Shiloh Drive, Suite 300
Laredo, TX 78045
Attn: John Amaya, Import Specialist
RE: Application for Further Review of Protest No. 2304-13-100077; Classification of “Scentportables”
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 2304-13-100077, timely filed by counsel on May 23, 2013, on behalf of Beauty Avenues LLC (Beauty Avenues or Protestant). The AFR concerns the tariff classification of the Scentportable™ fragrance unit under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of the subject merchandise was received and examined by this office.
FACTS:
The subject merchandise is a portable plastic holder designed to house an interchangeable and replaceable 0.2 fluid ounce air freshener gel disk, marketed under the name Scentportable™. The plastic housing is less than 2 inches in diameter and comes in more than fifty shapes or fanciful characters including a cupcake, a peace symbol, a ladybug, a flower, and a penguin. The front and back snap together to enclose the air freshener gel disk within. A hole is designed into the front piece so the scent may dissipate. The back piece features a plastic clip which allows the unit to attach onto something, such as a car visor. It is not a tension hinge, but rather a molded plastic hook. The product is available at Bath and Body Works (BBW) retail stores or at their online store. When on retail display it is called a “portable fragrance holder,” and BBW advertises it as a “clip and go” product used to freshen the air in the home, auto, or other small space.
In its condition as imported, the Scentportable™ unit is not packaged with the refillable or interchangeable air freshener gel disk. Only the portable plastic housing is at issue here.
The subject merchandise was entered by Beauty Avenues on March 9, 2012 classified under subheading 3307.49.00, HTSUS, which provides for, among other articles, preparations for perfuming or deodorizing rooms. Beauty Avenues filed a post-entry amendment (PEA) on October 9, 2012 classifying the product in subheading 3924.90.56, HTSUS, which provides for other household articles and hygienic and toilet articles of plastic. CBP subsequently issued a Notice of Action (CF-29) on December 4, 2012 and liquidated the subject merchandise on March 1, 2013, classified under subheading 3926.90.99, HTSUS, which provides for other articles of plastic, other.
The CF-29 stated the following:
The clips are more appropriately classified under 3926.90.9980 HTS as other articles of plastic, other. See New York Ruling A85876 issued August 6, 1996…
Subsequent entries of the plastic clips for the use with a membrane containing fragrance imported empty, that is, without the membrane containing fragrance should use the classification 3926.90.9980 HTS.
Beauty Avenues subsequently filed this Protest, arguing for classification in subheading 3924.90.56, HTSUS.
ISSUE:
Whether the subject merchandise is a “household article” of plastic under heading 3924, HTSUS, or whether it is an “Other article of plastic,” under heading 3926, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108 – 429, §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. §1514(c)(3)(2006)).
Further Review of Protest No. 2304-13-100077 is properly accorded to the Protestant pursuant to 19 C.F.R. §174.24(a) because the protested decision is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, Beauty Avenues argues that classification of the subject merchandise should follow New York Ruling (NY) A85876, dated August 6, 1996, because the product there is substantially similar to the product at issue here.
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 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 may then be applied.
The HTSUS provisions under consideration are as follows:
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:
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not 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. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 3924, HTSUS, provides, in pertinent part:
This heading 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).
The EN to heading 3926, HTSUS, provides, in pertinent 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.
In Headquarters Ruling Letter (HQ) W968181, dated October 3, 2006, CBP examined the scope of heading 3924, HTSUS. There, we noted that the heading provides for, inter alia, other household articles of plastics. Furthermore, we noted that the heading 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 (slipcovers).” See HQ W968181, citing EN 39.24. HQ W968181 continued by citing Nissho-Iwai American Corp. v. United States, where the Court of International Trade (CIT) stated that the canon of construction ejusdem generis, which means “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” See HQ W968181, citing Nissho-Iwai American Corp. v. United States, 10 CIT 154, 156 (1986). Further, “as applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157. The essential characteristics or purposes of the above listed exemplars are that they are of plastic, are used in the household, and are reusable. See HQ W968181. Thus we examine whether the subject Scentportables can be classified, ejusdem generis, in heading 3924, HTSUS, as “other household articles.”
CBP has had many occasions to analyze the meaning of “household articles” as it is understood by the heading text of 3924, HTSUS. CBP has maintained consistency by ruling that the primary location of an article standing alone does not determine the article’s primary function and hence does not make such articles classifiable as a household article of heading 3924, HTSUS. Further, CBP has repeatedly turned to the EN to 39.24 for guidance on what is properly classified therein. The ENs to heading 3924, HTSUS reflect that household articles are utilitarian and decorative in character of function as a receptacle, and are closely associated with household functions and household activities, e.g. dustbins and buckets for cleaning, watering cans for watering plants or a garden, and food storage containers which store food products for, and in, a household.
However, unlike the exemplars provided as household articles of heading 3924, HTSUS, the sole purpose of the Scentportable™ is to provide a nice smell to a small space, in a decorative, portable plastic housing. An air freshener is not strictly used in the household, nor is it even primarily used in the household. An air freshener, specifically this air freshener, as the marketing and advertising shows, is readily usable in an office, gym locker, or car. It is designed to be portable because of its size, and the plastic clip on the back which indicates that the product may be attached to a variety of surfaces in a variety of locations, again referencing the product’s own marketing and advertising: “The built-in clip attaches to your visor, air vent or seat pocket for a scent-sational driving experience”. A plastic housing for an air freshener is not consistent with the narrow uses contemplated by household articles of heading 3924, HTSUS. This also refutes Beauty Avenue’s reliance on HQ H968181, whereby Beauty Avenue asserts that the subject merchandise is only used in the household.
Furthermore, the fact that an item is used in the home is not itself sufficient to warrant classification as a household article of heading 3924, HTSUS. For example, heading 3926, HTSUS, covers other articles of plastic, many of which are used within a home. The EN to heading 39.26, HTSUS provides a long list of exemplars classified therein, many of which are commonly, if not principally, found in the home. See the EN to 39.26. CBP addressed this in HQ H031398, dated December 10, 2008 classifying bed risers. There, CBP considered whether bed risers possessed the same essential characteristics as the other exemplars in heading 3924, HTSUS. Specifically whether under the doctrine of ejusdem generis the subject bed risers possessed the essential characteristics and purposes as holders and storage containers of heading 3924, HTSUS. Ultimately, CBP held they did not. See also HQ H031399, dated December 10, 2008 (revoking, NY H87303, dated February 4, 2002, CBP held, “we find that the bed elevator’s capacity to create storage space is ancillary to their primary function of raising the height of a bed. As a result, CBP no longer finds classification of this merchandise under heading 3924, HTSUS to be correct.”).
Accordingly, the subject Scentportable™ myriad uses in various locations shows that it is not classifiable as a household article but instead is classifiable as an article of plastic under heading 3926, HTSUS. This is consistent with previous CBP rulings regarding the two headings at issue here, as well as a previous ruling on a similar product. See HQ H020141, dated July 30, 2008 (affirming classification of a plastic chair booster as other article of plastic under subheading 3926.90.99, HTSUS); HQ 967858, dated May 19, 2006, (classifying sunglasses clips designed to secure a pair of sunglasses to a surface, such as a car visor, in subheading 3926.90.99 because although the clip could be used in cars, it could also be used in a variety of other locations as well). See also, NY A85876, dated August 6, 1996, (classifying an air freshener case marketed for use in automobiles in subheading 3926.90.98, HTSUS).
As regards NY A85876, however, Beauty Avenues claims that an automobile is equated with a “room” for purposes of classifying a complete air fragrance unit for an automobile. This is a claim with no basis. In NY A85876, the importer sought classification for its product in subheading 8708.99.80, HTSUS, which provides for automobile parts and accessories because it had a visor clip (very similar to the instant merchandise’s molded plastic back clip). CBP denied this request because the air freshener did not facilitate the handling, improve the operation, nor extend the range of uses of an automobile. This ruling does not stand for the proposition that the interior space of a car is similar to a room in a home for classification purposes of “household articles.” In fact, the clip feature shows the opposite, that the merchandise is portable and will be used anywhere that the clip will affix the subject merchandise.
Beauty Avenues cites to various CBP rulings to support is claim. Specifically, Beauty Avenues cites NY K84821, dated April 23, 2004, NY 817102, dated December 29, 1995, and NY 817740, dated January 17, 1996, all of which regard plastic cleaning sponges, which could be used in places other than the house. However, general purpose sponges belong to a class of merchandise principally used in the home, specifically in the kitchen or bathroom because they are used as washing, cleaning, and bathing accessories. They are not similar to the subject merchandise which is designed and marketed and advertised as a “portable” air freshener, usable in myriad locations outside the home. See also NY E83639, dated June 28, 1999 (classifying sponge scrubbers), and NY H83419, dated September 7, 2001 (classifying animal-shaped mesh sponges).
Beauty Avenues’ reliance on NY K88625, dated October 26, 2004, NY N018367, dated November 7, 2007, NY J88134, dated September 8, 2003, NY B85453, dated June 10, 1997, and NY 893608, dated February 2, 1994, classifying various toilet articles is similarly flawed. These products are distinguishable from the instant merchandise because heading 3924, HTSUS, provides for hygienic or toilet articles, of plastic, separate and apart from items of household use. See the EN to 39.24 (D). Put another way, goods identified as hygienic or toilet articles, and thus classified under heading 3924, HTSUS, need not be principally used in the home.
Beauty Avenues cites to NY N054937, dated April 16, 2009 which classified a locker room vanity with a plastic mirror, memo board, and accompanying felt-tip marker, in heading 3924, HTSUS. This product is also distinguishable from the instant plastic product because the mirror was found to be a toilet article, classified under heading 3924, HTSUS, not a household article.
Finally, Beauty Avenues cites to NY 886822, dated June 24, 1993, classifying a plastic thermal beverage mug suitable for use in the car and other locations in heading 3924, HTSUS. But similar to the above analysis, the EN to 39.24 provides for tableware and kitchenware, separately and apart from household goods. Beverage mugs have consistently been classified as kitchenware whether or not they are used in the home. See also NY L82079, dated February 22, 2005 (classifying an insulated beverage container in heading 3924, HTSUS).
The Scentportable™ is a general purpose plastic holder designed to impart portability to an air freshener gel disk. It does not belong to a class of product principally used in the home, nor is it ejusdem generis with the exemplars of household products found in the EN to 39.24. As such, it is properly classified in heading 3926, HTSUS.
HOLDING:
By application of GRI 1, Scentportable™ portable plastic air freshener units are classified in heading 3926, HTSUS. Specifically, they are provided for in subheading 3926.90.99, HTSUS, as “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The general column one rate of duty is 5.3% ad valorem.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division