CLA-2 OT:RR:CTF:TCM H271369 NCD
Julie Vair
Senior Consultant
Expeditors Tradewin, LLC
1015 Third Avenue
12th Floor
Seattle, WA 98104
RE: Modification of NY N260351; Classification of aluminum ferrule/plastic button combinations
Dear Ms. Vair:
This is in response to your letter of November 11, 2015, in which you request, on behalf of West Pharmaceutical Services, Inc., reconsideration of New York Ruling Letter (NY) N260351 (“reconsideration request”). NY N260351, issued to you by U.S. Customs and Border Protection (CBP) on January 16, 2015, involves classification of aluminum ferrules, as well as combinations of the ferrules with plastic buttons (“ferrule/button combinations” of “subject merchandise”), under the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N260351 and determined that it is incorrect with respect to classification of the ferrule/ button combinations. For the reasons set forth below, we are modifying that ruling letter.
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 in the Customs Bulletin, Vol. 51, No. 18, on May 3, 2017. No comments were received in response to the notice.
FACTS:
The subject merchandise consists of aluminum ferrules, in ring form, atop which thin plastic buttons have been affixed by means of numerous aluminum “bridges.” In conjunction with rubber stoppers to which they are joined following importation, the ferrule/button combinations form closures for glass vials used as repositories for medicinal products and other substances. The specific function of the ferrule/button combination vis-à-vis the full closure is to crimp and secure in place the rubber stopper residing in the mouth of the vial (see Figure 1 below).
Figure 1
When the ferrule/button combination is placed atop the rubber stopper, the complete closure renders the glass vial impenetrable unless and until the plastic cap’s removal, which can be effected by the application of pressure with the thumb so as to sever the aluminum bridges (see Figure 2 below). Removal of the plastic button exposes the underlying stopper, which can be penetrated by a syringe to extract the substance contained in the vial. You state in your reconsideration request that the plastic button “acts as a dust cover for the injection site” and that the aluminum ferrule’s function “is to hold the rubber stopper in place on the vial creating container closure integrity.”
Figure 2
In NY N260351, CBP ruled that the subject ferrule/button combinations are classified in heading 3923, HTSUS, specifically subheading 3923.50.00, HTSUS, which provides for “Articles for the conveyance or packing of goods, or plastics; stoppers, lids, caps and other closures, of plastics: Stoppers, lids, caps and other closures.” CBP additionally ruled that the aluminum ferrules, when imported alone, are classified in heading 8309, HTSUS, specifically subheading 8309.90.00, HTSUS, which provides for “Stoppers, caps and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal: Other.”
Subsequently, following issuance of NY N260351 and our receipt of your reconsideration request, we requested and received from you a supplemental submission (“supplemental submission”) detailing the respective weights, densities, and surface areas of the plastic caps and aluminum ferrules. It was indicated in the submission that the articles are of two sizes, one of which includes a plastic button measuring 13 mm in diameter (“13 mm cap type”) and the other of which includes a plastic button measuring 20 mm in diameter (“20 mm cap type”). Your supplemental submission, along with samples of the subject merchandise, was submitted to a CBP laboratory for verification. The report issued by the laboratory (“CBP laboratory report”) indicates that the samples contained plastic buttons measuring between 20.6 and 20.7 mm in diameter. As such, it can be assumed for the purpose of this ruling that the samples provided to CBP were of the 20 mm button type.
The information provided in your submission, as well as the results of the CBP laboratory’s analysis, are detailed in the below table:
Supplemental Submission
CBP Laboratory Report
Type
13 mm button
20 mm button
20 mm button
Component
Button
Ferrule
Button
Ferrule
Button
Ferrule
Material
Polyether propyl
Aluminum 3003 Alloy
Polyether propyl
Aluminum 3003 Alloy
Plastic
Aluminum Alloy
Mass/
Weight
245.33 mg
417.103 mg
437.398 mg
420.784 mg
0.51 g
0.37-.39 g
Density
1.02 mg per cubic cm
270 mg per cubic cm
270 mg per cubic cm
270 mg per cubic cm
-
2.67 mg per cubic mm
Surface Area
1503.844 square mm
531.87 square mm
1464.611 square mm
1465.487 square mm
-
-
ISSUE:
Whether the aluminum ferrule/plastic cap combinations are properly classified as plastic caps in heading 3923, HTSUS, or as base metal parts of seals in heading 8309, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 2(b) states, in pertinent part, that “[a]ny reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance” and that “classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides that "composite goods consisting of different materials or made up of different components” are to be classified “as if they consisted of the material or component which gives them their essential character,” and where this is not possible, “under the heading which occurs last in numerical order among those which equally merit consideration.”
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System 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 2017 HTSUS provisions under consideration are as follows:
3923 Articles for the conveyance or packing of goods, or plastics; stoppers, lids, caps and other closures, of plastics:
3923.50.00 Stoppers, lids, caps and other closures
8309 Stoppers, caps and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal:
8309.90.00 Other
At the outset, we note that the subject merchandise consists of two components, i.e., the plastic buttons and aluminum ferrules, which are integrated into a single article. With respect to classification of the plastic buttons, we consider heading 3923, HTSUS, which provides, inter alia, for plastic caps and other closures. However, the term cap is not defined in the heading, the pertinent chapter or section notes, or elsewhere in the HTSUS. It is well-established that when a tariff term is not defined by the HTSUS or its legislative history, its correct meaning is its common or commercial meaning, which can be ascertained by reference to “dictionaries, scientific authorities, and other reliable information sources and ‘lexicographic and other materials.” See Rocknell Fastener, Inc. v. United States, 267 F.3d 1354, 1356-57 (Fed. Cir. 2001). “Cap” is commonly defined in various dictionaries as an object that provides protective cover for a separate object. [citation] As CBP has previously ruled, however, it is well-established that caps and other closures of heading 3923, while contributive to the “primary closure” of a container, need not necessarily cover the “entirety of the mouth of a container.” See Headquarters Ruling Letter (HQ) H257146, dated January 22, 2016.
Here, the “buttons,” which are indisputably comprised of plastic, are conjoined with the aluminum ferrules and, in turn, the rubber stoppers to form a closure for the vials. While the buttons do not in and of themselves cover the vials’ entire mouths, they do cover the rubber stopper as necessary to prevent inadvertent penetration of the stopper. Moreover, as you contend in your reconsideration request, they shield the stopper from dust particles so as to ensure that the latter remains sanitary when penetrated by a syringe. We therefore find that the buttons satisfy the definition of plastic caps for purposes of classification in heading 3923. However, while the button components of the subject merchandise are classifiable in the heading, the aluminum ferrule components are not. As such, the subject merchandise is described only in part by heading 3923 and cannot be classified there by application of GRI 1.
As to classification of the aluminum ferrules, we consider heading 8309, HTSUS, which provides, inter alia, for base metal parts of seals. Like the term “cap,” the terms “seal” and “part” are both left undefined in the HTSUS. With respect to the former, CBP has repeatedly ruled, based upon consultation of dictionary definitions, that “seal” denotes “something that firmly closes or secures: as…(1) a tight and perfect closure (as against the passage of gas or water)" or “[a]ny means of preventing the passage of gas or liquid into or out of something, esp. at a place where two surfaces meet.” See HQ H103227, dated July 29, 2010 (citing HQ 951510, dated August 7, 1992). With respect to the latter term, courts have developed two distinct, yet fully consistent, tests for determining whether a particular item can be described as such. Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). Under the first of these, initially promulgated in United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933), an imported item can be described as part if it is an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. In view of these definitions, the aluminum ferrules can be describes as a part of a seal if, when joined to the remaining components, they form a closure through which substances cannot pass.
Here, it is undisputed that the aluminum ferrules are comprised of base metal. Because they are ringed, they do not constitute a complete closure capable of preventing the passage of substances. They therefore cannot in and of themselves be described as a seal. However, they do form a complete, effective seal when combined with the rubber stoppers, insofar as they fasten the otherwise unsecured stoppers in place. The stoppers are merely inserted into the vials’ mouths, and consequently lack the stability to function as long-term sealants in the absence of the ferrules with which they are crimped. The ferrules are thus an integral component of the complete seal, without which the seal could not function as such. In effect, the aluminum ferrules qualify as base metal parts of seals within the meaning of heading 8309, HTSUS. However, because the ferrules are also conjoined with plastic buttons of heading 3923 to form the subject merchandise, the merchandise cannot be classified in heading 8309 by application of GRI 1.
As articles whose components are classifiable in different headings, i.e., heading 3923 and heading 8309, the subject ferrule/button combinations are classified pursuant to GRI 3. As stated above, GRI 3(b) provides that composite articles are classified “as if they consisted of the material…which gives them their essential character.” With respect to “essential character” for purposes of GRI 3(b), EN (VIII) to GRI 3(b) states as follows:
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.
Insofar as the “essential character test” requires a fact-intensive analysis, courts have consistently applied some or all of the above-listed factors, as needed, to ascertain the essential characters of various articles. See Home Depot, U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Home Depot I), aff’d 491 F.3d 1334 (Fed. Cir. 2007) (Home Depot II); see also Pomeroy Collection, Ltd. v. United States, 893 F. Supp. 2d 1269, 1287-88 (Ct. Int'l Trade 2013). In some cases, therefore, the essential character of a given composite article has been identified as that which corresponds to the predominant component in terms of weight, value, surface area, and/or other measurable properties. See Home Depot I, 427 F. Supp. 2d at 1292-1356; Home Depot II, 491 F.3d at 1336. In others, the relative importance of the components to the effective functioning of the whole article has ultimately proven determinative of essential character. See Pomeroy, 893 F. Supp. 2d at 1288; Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Conair Corp. v. United States, 29 C.I.T. 888 (2005). However, where none of these factors or any others conclusively indicate the constituent component that imparts the essential character, the composite article at issue cannot be classified in accordance with GRI 3(b). See, e.g., HQ H179843, dated March 14, 2012 (determining that a lighted floral arrangement could not be classified pursuant to GRI 3(b) because constituent components accounted for relatively similar values, bulks, and surface areas, and played equally important roles with respect to the use of the arrangement).
Here, read together, your supplemental submission and the CBP laboratory report provide varying and ultimately inconclusive indicia as to which component of the subject merchandise imparts the merchandise’s essential character. Your supplemental submission does indicate, consistent with the CBP laboratory report, that the ferrules are universally denser than the buttons. However, it also indicates that the 13 mm buttons predominate significantly by surface area but are much lighter than the ferrules, and that the 20 mm buttons predominate only slightly by mass but have a surface area almost equal to that of the corresponding ferrules. Moreover, the mass/weight measurements provided in the supplemental submission are not entirely consistent with the CBP laboratory report, which indicates that the 20 mm button is significantly heavier than its corresponding ferrule. Therefore, given that the bulk of the buttons’ and ferrules’ properties are either relatively equal or altogether unverifiable, it cannot be conclusively stated that either component is quantifiably predominant.
Nor can it be said, despite your assertions to the contrary, that either plays a greater role than the other in relation to the use of the subject article. While neither component provides a complete, permanent closure, both are indispensable to the functioning of the whole good as an effective, sanitary closure. As discussed above, the ferrule does not in and of itself cover the entire mouth of the vial, but it does enable the rubber stopper’s capacity to effectively and continuously do so. For its part, the button spans the entire diameter of the vial’s mouth but remains in position atop the mouth only until such time as the vial’s contents need to be extracted. While in position, however, the button ensures that the entire seal remains completely impenetrable and free of contaminants. Since neither component forms the complete seal, it cannot be determined which of the two imparts the essential character of the subject merchandise in its condition as imported.
Because the merchandise cannot be classified by reference to GRI 3(b), we accordingly apply GRI 3(c), which requires classification of the subject ferrule/button combinations under the heading which occurs last in numerical order. Of the two headings at issue in the instant case, heading 8309 occurs last in numerical order. The subject ferrule/button combinations are therefore classified in heading 8309, HTSUS. See HQ H179843, supra.
HOLDING:
By application of GRIs 1 and 3(c), the subject aluminum ferrule/plastic button combinations are properly classified in heading 8309, HTSUS. They are specifically classified in subheading 8309.90.0000, HTSUSA (Annotated), which provides for: “Stoppers, caps and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal: Other.” The 2017 column one general rate of duty is 2.6% ad valorem.
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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N260351, dated January 16, 2015, is hereby MODIFIED with respect to the classification of the ferrule/button combinations, but the classification of ferrules entered without buttons remains in effect.
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