CLA-2 RR:CR: GC 966441 RSD
TARIFF NOS. 3919.90.50, 3926.90.98, 7326.90.85, 7419.99.50
Sandra Liss Friedman, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, New York 10016
RE: Needle Felting Kit; Set; Parts and Accessories
Dear Ms. Friedman:
This is in response to your letter dated March 17, 2003, on behalf of Brother International Corporation (Brother) requesting a ruling on the classification under the Harmonized Tariff Schedule of United States (HTSUS) of a needle felting kit that is used on home sewing machines to do ornamentation on fabrics. A sample of the kit was submitted for examination. Although the box in which the kit will be sold was not available, a picture of a proposed retail box was submitted along with other product literature.
Brother intends to import a needle felting kit, which will be sold under the trademark “Feltscaper.” Brother anticipates importing this product through the port of Los Angeles, as well as through other ports.
The needle felting kit is composed of the following items:
A felting needle (valued at xxx).
A needle felting foot (valued at XXX) constructed primarily of plastic and specially designed to replace the presser foot on a sewing machine. The needle felting foot raises and lowers the felting needle, once it is inserted into the sewing machine.
A felting needle plate (valued at xxxxxx) is also
designed for a sewing machine. It replaces the sewing machine needle plate and acts as a base for the fabric.
A thread take up cover (valued at xxxxxx) which is a small plastic tube intended to cover the sewing machine’s thread take up.
A felting needle holder (valued at xxxxxx) is attached to the sewing machine needle bar and holds the felting needle in place.
Two types of screwdrivers, standard (valued at xxxxx) and a disc-type (valued at xxxxx), both of which are used to affix the components of the needle felting kit to a sewing machine.
A mylar sticker for the lid of the box (valued at $xxxx).
An optional wool roving fibert (valued at xxxxx) used to embellish the base fabric will be added to the kit after the kit is imported into the United States.
The components of the kit are intended to replace certain standard parts of a household sewing machine, such as the sewing needle and supporting plates and holders. Once the needle felting kit is installed, the mechanical capabilities of the sewing machine will be changed from a traditional sewing machine to one that adorns fabrics with surface embellishments using a felting process. Although the felting needle is designed specifically for use with a sewing machine, it is unlike a traditional sewing machine needle in that the felting needle does not use thread, and it does not have an “eye” through which thread is inserted. Rather, the felting needle has five individual needles, each of which uses its several barbs to catch surface fibers, such as the wool roving or other embellishing fiber or yarns that are used, and push them through a base fabric to decorate it. After these items are installed, a sewing machine can only perform needle felting. To perform sewing again, it is necessary to remove the needle felting attachment and reinstall the standard sewing machine parts. Except for the optional wool roving, which is added in the U.S., all of the components of the needle felting kit replace the original sewing machine parts and are necessary to enable the felting needle to carry out its intended function. Except for the wool roving, all of the components are manufactured in Japan, and are imported into the United States in a retail box. The retail package describes the needle felting attachment without thread for the PQ sewing machine series. The contents listed on the box include the seven items noted above plus the wool roving which is added after the kit is imported. When the kit is imported, the retail box will not be sealed.
Whether the felting needle kit will qualify as a set under GRI 3(b), if an additional item, roving fabric, is added to the retail box after the other components are imported.
What is the classification under the HTSUS of the subject articles?
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 that requires otherwise, by the Additional U.S. Rules of Interpretation (AUSRI). The GRIs and the AUSRI are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.
The following HTSUS provisions are under consideration:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
* * * * * * * * * * *
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
* * * * * * * * * * *
7326 Other articles of iron or steel:
* * * * * * * * * * *
7419 Other articles of copper:
* * * * * * * * * * *
8205 Handtools (including glass cutters) not elsewhere
specified or included; blow torches and similar self-
contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils;
portable forges; hand- or pedal–operated grinding wheels with frameworks; base-metal parts thereof:
8205.40.00 Screwdrivers, and parts thereof
* * * * * * * * * * *
8449.00 Machinery for the manufacture or finishing of felt or nonwovens in the piece or in the shapes, including
machinery for making felt hats; blocks for making hats;
* * * * * * * * * * *
8452 Sewing machines, other than book-sewing machines of heading 8440; furniture, bases and covers specially designed for sewing machines; sewing machine needles; parts thereof:
8452.90.00 Other parts of sewing machines
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The components contained in the needle felting kits must either be considered as a set or be classified individually. The EN to GRI 3(b) states:
…the term “goods put up in sets for retail sale” shall be taken to mean goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings….;(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
We believe that the needle felting kit satisfies the first two criteria set forth in the EN to GRI 3(b) for determining whether a collection of articles qualifies as a set. The instant merchandise consists of articles which would be individually classified in several different headings, and they are packaged together to meet a particular need (installation of a felting needle on home sewing machines to perform ornamentation of fabrics). However, we believe that the third criteria specified by the EN to GRI 3(b) is not satisfied because after importation an additional item, the roving fabric, is added to the retail package of the needle felting kit. Although the cost of the roving material appears to be minimal compared to the other components in the kit, its significance is demonstrated by the fact that it is listed on the box and on Brother’s product information website as one of the items contained in the kit. This indicates that Brother wants to inform consumers that they will obtain the roving material when they purchase the needle felting kit. Because an item must be added to complete the needle felting kit, we find that at the time of importation the needle felting kit is not put up in a manner suitable for sale directly to users without repacking. Accordingly, the needle felting kit is not classified as a set under GRI 3(b), which means that each item in the kit must be separately classified.
You contend that the items in the needle felting kit should be classified under subheading 8452.90.00, HTSUS as sewing machine parts. Chapter 85 falls within Section XVI. Section XVI, Note 2 states in pertinent part:
Subject to note 1 to this section, note 1 to chapter 84 and to note 1 to chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules:
(a) Parts which are goods included in any of the headings of chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8485, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings;
(b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517;
Specifically, Note 2(b) covers parts that are provided for in the same heading as the machine or apparatus with which they are solely or principally used. However, for Note 2(b) to be applicable, the status of an article as a part must first be established. We note that heading 8452 does not include accessories. Most of the headings throughout Section XVI include parts in the same heading as the machine. There are also a number of machine headings which do not include parts. They have separate headings for their parts. Because certain headings include accessories and others do not within the same section or chapter, we conclude that the drafters of the HTSUS intended a distinction between parts and accessories. Accordingly, because accessories for sewing machines are not included within heading 8452, HTSUS, we must determine whether the items contained in the needle felting kit should be considered as parts or accessories.
In Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F.Supp. 554 (1995), aff’d 110 F.3d 774 (Fed. Cir. 1997), the court pointed out that there are two distinct lines of cases defining the word "part" in the tariff. Starting with U.S. v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, (1933) T.D. 46075 (1933), cert. denied, 292 U.S. 640 (1934), this line of cases holds that a part of an article "is something necessary to the completion of that article without which the article to which it is to be joined, could not function as such article." Another line of cases evolved from United States v. Antonio Pompeo, 43 CCPA 9, C.D. 1669 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it.
In applying this analysis, Customs generally will consider an article to be a part if: it is combined with other articles to be used; or it is an integral, constituent or component part, without which the article to which it is joined could not function; or it aids in the safe and efficient operation of the main article; or it is identifiable by shape or other characteristics as an article solely or principally used as a part. In contrast, Customs generally will consider an article to be an accessory if: it facilitates use or handling; or it widens the range of uses of the main article; or it improves the operation of the main article; or it is not needed to enable the goods with which it is used to fulfill its intended function; or it is identifiable as being intended solely or principally for use with a specific article. See HRL 962634, dated October 25, 2001.
Generally speaking, accessories are articles that are not needed to enable the goods with which they are used to fulfill their intended function. They must, however, somehow contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). See HRL 082976 dated March 20, 1990.
In HQ 087704, September 27, 1990, this office considered the
classification of “accessories” under the HTSUS and stated as follows:
The term “accessory” is not defined in either the tariff schedule or the Explanatory Notes. An accessory is generally an article which is not necessary to enable the goods with which it is used to fulfill their intended function. An accessory must be identifiable as being intended solely or principally for use with a specific article. Accessories are of secondary or subordinate importance, not essential in and of themselves. They must, however, somehow contribute to the effectiveness of the principal article (e.g. facilitate the use or handling of the principle article, widen the range of its uses, or improve its operation).
EN 85.42 indicates that heading 8542 “… includes sewing machines, which in addition to ordinary sewing, can produce purely decorative work…” However, the only examples of parts of sewing machines which are mentioned in EN 84.52 are stands and shuttles. While the felting needle is suitable for use solely with sewing machines of heading 8452, it is not essential for the normal operation of sewing machines. Rather the needle felting kits expand the range of use of the home sewing machine from normal sewing to the adorning of fabrics in an operation known as “feltscaping.” The needle felting kit is not a standard feature that is normally sold with most sewing machines. We note that on its website, Brother refers to the feltscaper as an accessory that is designed exclusively for the Brother PQ sewing machine models. We find this to be highly persuasive evidence that the needle felting kit should be considered an accessory rather than as a part. Accordingly, we conclude that the needle felting kit cannot be classified within subheading 8452.90.00, HTSUS, as other parts of sewing machines.
Alternatively, you contend that the needle felting kit can be classified as sewing machine parts, based on GRI 4, HTSUS. When merchandise cannot be classified using GRI's 1 through 3, GRI 4 becomes operative. GRI 4 provides that:
Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.
We believe that GRI 4 is not be applicable in this instance because the articles contained in the needle felting kit can be classified in accordance with GRI 1 within the appropriate provisions.
Because the felting needle kit cannot be classified as a set under GRI 3(b) or as parts of sewing machines under heading 8452, HTSUS, each item contained in the kit must be classified separately.
As mentioned above the felting needle is composed of metals and is classified under the appropriate metals provision. You have informed us that the felting needle’s base is made of free cutting brass weighing two grams and the needles themselves are made of nickel plated piano wire weighing one gram. Based on this information, the felting needle is classified in subheading 7419.99.50, HTSUS as “Other articles of copper: Other: Other: Other: Other.”
The felting needle holder is made up of steel and is classifiable under subheading 7326.90.85, HTSUS, as “Other articles of iron or steel: Other: Other: Other: Other.”
The needle felting plate and needle felting foot are composite goods because they are composed of different materials, plastic and metal. GRI 2(b) states that the classification of goods consisting of more than one material shall be determined according to the principles of GRI 3. Under the principles of GRI 3(a), the heading which provides the most specific description is to be preferred to a heading which provides a more general description. However, when two subheadings each refer to part of materials in a composite good the subheadings are to be regarded as equally specific in relation to the good. GRI 3(b) provides that composite goods consisting of different materials are to be classified as if they consisted of the material which gives them their “essential character.”
The GRI’s do not provide a definition for the phrase "essential character," but the EN’s suggest an illustrative list of factors to consider. EN Rule 3(b) (VIII) states the factors that may be relevant to the determination of "essential character" of a composite good. The factors, which "will vary between different kinds of goods," may include the nature of the material or component, its bulk, its quantity, its weight, its value or the role played by the constituent material in relation to the use of the good.
The felting needle plate is made of steel and two screws attach a plastic dust box to it. The felting needle plate serves as a base for the fabric so that the needle does not hit the sewing machine. The plastic dust box keeps the bobbin area clean. We find that the steel portion of the felting needle plate provides the main function for the article, that of serving as a base for the fabric. Thus it imparts the essential character to the article. Therefore, the felting needle is classified in subheading 7326.90.85, HTSUS, as “Other articles of iron or steel: Other: Other: Other: Other.”
The needle felting foot is made of steel with a plastic needle guard attached to it. The needle felting foot raises and lowers the felting needle and keeps pressure on the fabric so the fabric stays in place when the needle goes up and down. The plastic needle guard protects the machine operator’s fingers from being injured by the needle. We believe that the metal needle felting foot is the key element of this article because the felting foot could perform its function even without the plastic guard being attached to it. Therefore, we conclude that the steel portion of the felting foot imparts its essential character, and thus the article is classified in subheading 7326.90.85, HTSUS, as “Other articles of iron or steel: Other: Other: Other: Other.”
The thread take-up cover is a small plastic tube with an approximate diameter of ¼ inch and an approximate length of 7/8 inch. You suggest that the thread take-up cover should be classified in heading 3916, HTSUS, which provides for a monofilament of which any cross-sectional dimension exceeds 1 millimeter rods, sticks and profile shapes, of plastic. In HRL 082619 dated February 26, 1990, Customs reviewed whether a similar tubular product could be classified in heading 3916, HTSUS. The ruling noted that the tube was produced by extrusion and in a tubular shape with a uniform diameter. It was pointed out that the dictionary definitions for filament and monofilaments imply that such products must be relatively narrow. In light of the above analysis, Customs determined that the tubing could not be classified under heading 3916. Instead, the article submitted was classified as other articles of plastic under heading 3926, HTSUS. With respect to the instant thread take-up cover, its small length relative to its diameter indicates that it is not a long thin, continuous product that is required for classification as a filament under heading 3916, HTSUS. Accordingly, we find that the thread take-up cover is classified under subheading 3926.90.98, HTSUS, as “Other articles of plastic…: Other: Other.”
The screwdrivers are classified under subheading 8205.40.00, HTSUS which provides for “Handtools (including glass cutters) not elsewhere specified or included…: Screwdrivers and parts thereof.”
The final item in the needle felting kit is the mylar sticker. We do not have a sample of the mylar sticker so we cannot provide a definitive classification. However, if the sticker is flat, pressure sensitive, and made of plastic, it is classified in subheading 3919.90.50 HTSUS, as: “Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
The needle felting kit is not a set put up for retail sale within the meaning of GRI 3. Therefore, the items in the needle felting kit must be individually classified.
The felting needle is classified in subheading 7419.99.50, HTSUS, as: “Other articles of copper: Other: Other.”
The felting foot, needle felting plate, and felting needle holder are classified in subheading 7326.90.85, HTSUS, as: “Other articles of iron or steel: Other: Other.”
The thread take-up cover is classified in subheading 3926.90.98, HTSUS, as: “Other articles of plastic: Other: Other.”
The screwdrivers are classified in subheading 8205.40.00, HTSUS.
If the mylar sticker is flat, pressure sensitive, and made of
plastic, it is classified in subheading 3919.90.50, HTSUS, as: “Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: Other: Other.”
Myles B. Harmon, Director
Commercial Rulings Division