OT:RR:CTF:CPMM H296920 APP
Mr. Hobyung Yi
Mainfreight Inc.
630 Sullivan Road
Elizabeth, NJ 07201
RE: Revocation of NY N287024 and modification of NY N301247; Tariff classification of a plastic hard drive storage case and a plastic “ClickShare Tray”
Dear Mr. Yi:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) N287024, dated July 6, 2017 (issued to Untwist Systems, LLC), regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a plastic hard drive storage case (Hudzee case).
In NY N287024, CBP classified the plastic hard drive storage case under heading 3924, HTSUS, specifically under subheading 3924.90.56, HTSUS, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” We have determined that this ruling is in error and that the correct tariff classification should be under heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” We have also determined that the language on the scope of heading 3923, HTSUS, in NY N301247, dated November 7, 2018, needs to be corrected. Accordingly, for the reasons set forth below, we hereby revoke NY N287024 and modify NY N301247 with respect to the scope of heading 3923, HTSUS.
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. § 1625(c)(l)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 52, Number 46, on November 14, 2018, proposing to revoke NY N287024 and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice. At that time, it came to our attention that similar to NY N287024, NY N301247 incorrectly limits the scope of heading 3923, HTSUS.
FACTS:
The Hudzee case at issue in NY N287024 is an antistatic enclosure designed to protect a computer internal hard drive. It is made of red polypropylene plastic material with an interior padding of foam laminated with a top layer of Mylar that compresses and conforms to protect each specific internal hard drive. The case has a secure safety latch, a reversible paper insert label to record the contents of each case, and a clear label window.
The “ClickShare Tray” at issue in NY N301247 stores buttons when they are not in use. It is designed to be placed on a meeting table and holds up to four buttons at one time. The tray is made of 59.5 percent plastic.
ISSUE:
What is the scope of heading 3923, HTSUS?
Whether the plastic hard drive storage case in NY N287024 is classifiable under heading 3924 as other household article of plastics or under heading 3926 as other article of plastics.
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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration in this case 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 at the international level. While neither 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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
It is undisputed that the Hudzee case is not classifiable in heading 3923, HTSUS, because it is not used for packing and conveyance of other personal or non-personal items. See S.C. Johnson & Son, Inc. v. United States, 335 F. Supp. 3d 1294 (CIT 2018) (ruling that heading 3923, HTSUS, is a use provision and covers goods of plastic used to carry or transport other goods of any kind).
During the comment period, we became aware of the recently issued NY N301247, incorrectly limiting the scope of heading 3923, HTSUS, to items used in the conveyance or packing of bulk goods and commercial goods. In NY N301247, CBP correctly classified, among other items, a plastic “ClickShare Tray” storing buttons for possession of the consumer designed to transmit data from a personal computer to a “ClickShare Base Unit” in heading 3926, HTSUS, under subheading 3926.90.99. CBP ruled that heading 3923, HTSUS, was not applicable because this heading covered items such as disposable packaging that were “used in the conveyance or packing of bulk goods and commercial goods in the stream of commerce, not personal effects or other items for possession of the consumer.” We reiterate that it did not matter whether the buttons in NY N301247 were personal or non-personal items because consistent with the court’s ruling in S.C. Johnson & Son, supra, heading 3923, HTSUS, encompasses plastic goods used to carry or transport other goods of any kind. The plastic tray in NY N301247 could not be classified in heading 3923 because it did not carry or transport the buttons.
Therefore, at issue in NY N287024 are headings 3924 and 3926, HTSUS, and we will address them in turn. Heading 3924, HTSUS, covers “tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics.” EN 39.24 provides that heading 3924 covers the following articles of plastics:
(A) 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.
(B) 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.
(C) 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).
(D) 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).
Heading 3924, HTSUS, is organized into categories (e.g., tableware and kitchenware) followed by the general phrase "other household articles." "[W]hen a list of items is followed by a general word or phrase, the rule of ejusdem generis is used to determine the scope of the general word or phrase." Aves. in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed. Cir. 1999). "In classification cases, ejusdem generis requires that, for any imported merchandise to fall within the scope of the general term or phrase, the merchandise must possess the same essential characteristics or purposes that unite the listed examples preceding the general term or phrase … Thus, under an ejusdem generis analysis, a court must consider the common characteristics or unifying purpose of the listed exemplars in a heading as well as consider the specific primary purpose of the imported merchandise. Classification of imported merchandise under ejusdem generis is appropriate only if the imported merchandise shares the characteristics or purpose and does not have a more specific primary purpose that is inconsistent with the listed exemplars." Id.
The essential characteristics or purposes of the exemplars of EN 39.24 are that they are of plastic, are used in the household, and are reusable. See HQ W968181, dated October 3, 2006. The Hudzee case at issue is not tableware, kitchenware, or a hygienic and toilet article. We need to determine whether the Hudzee case can be classified, ejusdem generis, in heading 3924, HTSUS, under “other household articles.” The primary location of the article alone does not determine its primary function and does not make it classifiable as a household article of heading 3924, HTSUS. EN 39.24 reflects that household articles are utilitarian and decorative in character or function as a receptacle, and are closely associated with household functions and activities such as dustbins and buckets for cleaning, watering cans for watering plants or a garden, and food storage containers to store food products for and in a household.
Unlike the exemplars provided as household articles of heading 3924, HTSUS, the sole purpose of the Hudzee case is to protect and store an internal hard drive that is not in use. The Hudzee case is not strictly used in the household, nor is it even primarily used in the household. It is readily used in the office and is not consistent with the narrow uses contemplated by household articles of heading 3924, HTSUS. The fact that the Hudzee case can be used in the home occasionally in itself is not sufficient to warrant its classification as a household article of heading 3924, HTSUS. In sum, the Hudzee case is not ejusdem generis with the “other household article of plastics” exemplars of EN 39.24(C) because even though it is of plastic and is reusable, it is not primarily used in the household. As such, the Hudzee case is not classifiable in
heading 3924, HTSUS.
We next turn to heading 3926, HTSUS, which is the residual provision for plastics and covers articles of plastics not elsewhere specified or included. EN 39.26 states, in relevant 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.
Heading 3926, HTSUS, is a general heading or basket provision, as evidenced by the word “other.” See Item Co. v. United States, 98 F.3d 1294, 1296 (Fed. Cir. 1996). Classification of imported merchandise in a basket provision is only appropriate if there is no tariff provision that covers the merchandise more specifically. See EM Indus., Inc. v. United States, 22 CIT 156, 165, 999 F. Supp. 1473, 1480 (1998). Heading 3926, HTSUS, covers many articles of plastics, many of which are used within a home. EN 39.26 provides a long list of exemplars (e.g., fittings for furniture, statuettes and other ornamental articles, fittings of general use, etc.) classified therein, many of which are commonly, if not principally, found in the home. Since the Hudzee case is not included in heading 3924, it falls by default into heading 3926, HTSUS.
CBP has previously classified universal media disk covers that are similar to the Hudzee case in heading 3926, HTSUS. Just like the Hudzee case, they were designed to protect and store other articles (e.g., games and movies) from dust, dirt, and fingerprints. See NY N045112, dated December 18, 2008 (classifying universal media disk covers in subheading 3926.90.99, HTSUS); HQ H137840, dated December 16, 2010 (classifying a reusable universal media disk cover in subheading 3926.90.99, HTSUS).
Accordingly, the Hudzee case is classifiable in heading 3926, HTSUS, specifically in subheading 3926.90.99, HTSUS as “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The plastic tray in NY N301247 remains in subheading 3926.90.99, HTSUS, because heading 3923, HTSUS, is not applicable as the tray did not carry or transport the buttons.
HOLDING:
By application of GRIs 1 and 6, the subject Hudzee case is classified in
heading 3926, HTSUS, specifically under subheading 3926.90.99, HTSUS, as “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other” for the reasons explained above. The current column one, duty rate is 5.3% ad valorem.
Heading 3923, HTSUS, encompasses plastic goods used to carry or transport other goods of any kind. Since the tray in NY N301247 did not carry or transport the buttons, it remains classifiable in heading 3926, HTSUS, under subheading 3926.90.99, HTSUS.
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 at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY N287024, dated July 6, 2017, is hereby revoked.
NY N301247, dated November 7, 2018, is hereby modified with respect to the scope of heading 3923, HTSUS.
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
Cc: Mr. David Parker Tiffany Sims CHB, Inc. 225 Corporate Center Dr. STE C Stockbridge, GA 30252