CLA-2 OT: RR: CTF: TCM H250132 ERB
Port Director
Port of Lost Angeles/ Long Beach Seaport
U.S. Customs and Border Protection
301 East Ocean Blvd., Suite 700
Long Beach, CA 90802
RE: Internal Advice Request; Tariff classification of a bedding set with bag
Dear Port Director:
This letter is in reply to your request for Internal Advice, initiated by Counsel on behalf of Extreme Linen LLC (Extreme Linen). At issue is the tariff classification of a combination bedding set, under the Harmonized Tariff Schedule of the United States (HTSUS). This office received a sample, referred to as the Laurel Hill 7-Piece Comforter set, Style 721 1860 0104 09. With respect to this Internal Advice request, this office also considered information provided at its meeting with Counsel on April 13, 2015, as well as additional materials provided to this office by Counsel, dated May 4, 2015.
FACTS:
According to the product’s exterior packaging label, the submitted sample is the Laurel Hill 7-Piece Comforter set. The entire sample consists of one comforter, two pillow shams, one bed skirt, one square pillow, and two oblong pillows packaged together in a clear polyvinyl chloride (PVC) bag. When full of the bedding assortment, the bag measures approximately 22.5” x 22” x 13,” and weighs approximately 13 pounds.
The PVC bag has a 3-sided zippered opening, wire reinforced piping in the top and bottom seams, three internal pockets for product inserts and a handle made of the same PVC as the bag itself. The bag measures 8 mils in thickness, and is suitable for long term use in storing the bedding articles when not in use. It is not imported alone, but rather is always imported containing the various bedding components described above.
The comforter is made with a 100% polyester jacquard woven fabric on the face and a plain woven polyester fabric on the back. It is stuffed with polyester fiberfill. The edges are finished with a decorative cording. The bed skirt is made from woven polyester fabrics. The shams are made from the same polyester fabrics as the comforter and are lightly filled with polyester batting in the face panel. The three throw pillows are made from the same polyester fabric as the comforter and other polyester fabrics and stuffed with polyester fiberfill.
Extreme Linen’s position is that the 7-piece set does not meet the criteria for “goods put up in sets for retail sale,” and that all of the components are to be classified separately and individually. Specifically, Extreme Linen maintains that the 7-piece set is actually 8 individual pieces, because the storage bag does not contribute to the articles “meet[ing] a particular need or carry[ing] out a specific activity”.
ISSUES:
Whether the clear PVC bag which holds the combination bedding set is part of a “set put up for retail sale” or whether the bedding components and the PVC bag should be classified separately and individually.
If the merchandise is a “set” for tariff classification purposes, which article imparts the set’s essential character.
LAW AND ANALYSIS:
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 GRIs may then be applied.
The HTSUS heading provisions at issue are as follows:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
6302 Bed linen, table linen, toilet linen and kitchen linen:
6304 Other furnishing articles, excluding those of heading 9404:
9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
GRI 3 guides the analysis when classifying goods that are mixtures, composite goods, or goods put up in sets for retail sale, because those goods are, prima facie, classifiable under two or more headings. GRI 3(b) provides as follows:
(b) 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 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 Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN(X) to GRI 3(b) is relevant here.
(X) For the purposes of this Rule, 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. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this rule;
(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).
The term therefore covers sets consisting, for example, of different foodstuffs intended to be used together in the preparation of a ready-to-eat dish or meal.
Examples of sets which can be classified by reference to Rule 3(B) are:
(a) Sets consisting of a sandwich made of beef, with or without cheese, in a bun (heading 16.02), packaged with potato chips (French fries)(heading 20.04): Classification in heading 16.02
(b) Sets, the components of which are intended to be used together in the preparation of a spaghetti meal, consisting of a package of uncooked spaghetti (heading 19.02), a sachet of grated cheese (heading 04.06) and a small tin of tomato sauce (heading 21.03), put up in a carton: Classification in heading 19.02.
The rule does not, however, cover selections of products put up together and consisting, for example, of:
A can of shrimps (heading 16.05), a can of pate de foie (heading 16.02), a can of cheese (heading 04.06), a can of sliced bacon (heading 16.02), and a can of cocktail sausages (heading 16.01); or
A bottle of spirits of heading 22.08 and a bottle of wine of heading 22.04
In the case of these two examples and similar selections of products, each item is to be classified separately in its own appropriate heading. This also applies, for example, to soluble coffee in a glass jar (heading 21.01), a ceramic cup (heading 69.12) and a ceramic saucer (heading 69.12) put up together for retail sale in a paperboard box.
Hairdressing sets consisting of a pair of electric hair clippers (heading 85.10), a comb (heading 96.15), a pair of scissors (heading 82.13), a brush (heading 96.03) and a towel of textile material (heading 63.02), put up in a leather case (heading 42.02): Classification in heading 85.10.
Drawing kits comprising a ruler (heading 90.17), a disc calculator (heading 90.17), a drawing compass (heading 90.17), a pencil (heading 96.09) and a pencil sharpener (heading 82.14), put up in a case of plastic sheeting (heading 42.02: Classification in heading 90.17.
For the sets mentioned above, the classification is made according to the component or components taken together, which can be regarded as conferring on the set as a whole its essential character.
A “sets” analysis pursuant to GRI 3(b) is appropriate in this context, as no single heading describes all the subject products which are packaged and sold together. Extreme Linen argues that each individual component should be classified separately and pursuant to GRI 1, without further inquiry into the remaining successive GRIs. However, “this facile reading of the GRIs would make the terms of GRI 3(b)’s “retail sets” language inapplicable under any situation”, and thus rendered superfluous. Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1293 (Ct. Intl’ Trade 2012). Only if a group of articles classifiable in different headings and packaged together fail the requirements of a set may they be classified separately.
The subject merchandise is prima facie composed of at least two different articles which are classifiable in different headings. Therefore, the first criteria, EN (X) subsection (a), to GRI 3(b) is satisfied. Jumping ahead to the third criteria, the EN (X) subsection (c) requires the goods to be put up in a manner suitable for sale directly to users without repacking. The subject merchandise including all its components are fully contained in the PVC bag and no need for repacking is necessary. It satisfies the third criteria of the EN (X) to GRI 3(b).
To address the complexities that GRI 3(b) “sets” can present as regards tariff classification, Customs has created an Informed Compliance Publication entitled, “What Every Member of the Trade Community Should Know About: Classification of Sets Under HTSUS” (March 2004). (Hereinafter referred to as the ICP). Therein, Customs summarized the “particular need or carry out a specific activity” requirement as necessitating, a relationship between the articles contained in a group, and such relationship must establish that the articles are clearly intended for use together for a single purpose or activity to comprise a set under GRI 3(b). ICP, supra at 12. Customs found common themes in the EN examples that constitutes a “particular need or carry out a specific activity”. For example, in example (1)(a) of EN (X) the sandwich in bun packaged with potato chips, and (1)(b) the spaghetti meal, share the common trait of being used to produce a single dish. In example (2), the hairdressing set, the various articles may be sold individually for many purposes, but together they are used to complete the act of styling ones hair. Lastly, example (3) denotes multiple tools that a user will combine when drawing or drafting.
The ICP also examined the application of “To meet a particular need or carry out a specific activity” to proposed GRI 3(b) sets which include holders or containers. ICP, supra at 13. Generally, Customs has treated the classification of holders, cases, etc. which are presented as part of a set in two ways. In most cases, the container is included with other articles which clearly meet a particular need or carry out a specific activity. In those cases, the concern has been directed to the propriety of the container and whether it detracts from the classification of all the articles as a set. In other cases, however, only the container and one other article are presented for consideration as a set. In these cases, the concern has been focused squarely on the role of the container, jointly with its contents, in meeting a particular need or carrying out a specific activity. See Headquarters Ruling (HQ) H084717, dated September 13, 1989, (“The tool box/cabinet provides convenient storage for the electrician/mechanic. The latching feature and the handle, allow an individual to carry the tool box anywhere he or she may require the use of its contents, whether it be within the home or elsewhere.”)
Whether a container contributes to a set meeting a particular need or carry out a specific activity, or whether that container thwarts the set, causing the articles to be classified separately and individually was addressed by the Court of International Trade (CIT) in Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1293 (Ct. Intl’ Trade 2012). There, the CIT considered a cosmetics kit which contained 12-15 different cosmetics, cosmetic brushes and other related items, which were assembled into a zippered carrying case the parties referred to as a “train case” or “vanity case”. In addressing the train case itself, the Court said, “the fact that the set is imported in a container that could be separately classifiable does not prevent the classification of the set as such. The [container’s] relative weight, bulk, or size does not overcome the fact that its purpose is to facilitate the storage and use of the items that enable the set to fulfill the specificity…that makes it a set.” Id at 1297. This analysis is applicable in the instant case as regards the PVC bag.
Here, the PVC bag is akin to the tool box mentioned above, and the train case discussed in Estee Lauder, and is not akin to, for example, a glass jar with flavored hard candies packaging within (See HQ 957960, dated February 5, 1996, separately classifying the candies from the glass jar because they do not serve to carry out a single activity). This is because a relationship exists between the bedding articles and the bag in which the articles are placed, which is suitable for storage, protection, and transportation of the components under normal use. As Counsel noted in its submission, as well as in its meeting with this office, the PVC bag is durable, reusable, designed for prolonged use, is of a kind normally sold with bedding products, and is of a kind normally sold at retail on its own merits. Counsel produced numerous examples of retail stores which sell PVC storage options substantially similar or identical to the subject PVC bags. The dimensions of the PVC bag are such that it is designed to hold all of the bedding articles together when they are put away for storage, or when the articles are not in season. Therefore, together, they meet the particular need or specific activity of making up and maintaining or storing ones seasonal bedding. See Estee Lauder, Inc. v. United States, supra, at 1297, (“Because the…cosmetic case facilitates the transportation, storage and use of the cosmetics and other components contained within and for which it was designed, marketed and sold, it helps carry out the specific activity of applying make-up together with its contents.”). See also NY N261060, dated February 3, 2015, (classifying a stationary set, consisting of a plastic container divided into three sections designed to hold the 100 paper clips, 6 binder clips and 52 push pins packaged therein. The contents and the specialized container are classified together as a “set.”)
As above, various containers and packaging were considered for the ICP. Example (1)(b) mentions a carton that holds the spaghetti meal ingredients and it continues to mention coffee in a glass jar. Example (3) states that the components of the drawing kit are put up in a case of plastic sheeting. All three methods of packaging were mentioned, but not factored into the classification analysis. Conversely, in example (2) the components of the hairdressing set were packaging in a leather case which merited consideration on its own as an article of the set. See also NY N239273, dated April 2, 2013, where CBP classified a ballerina flat shoe and the accompanying textile pouch used to carry the flats when not in use; and see NY N227436, dated August 23, 2012, classifying three sizes of lens and screen cleaning kits consisting of a vinyl flexible plastic case, appropriately sized to contain a textile cleaning cloth and a 1.0 fluid ounce squirt bottle of lens cleaner fluid, together as a set. These examples demonstrate that CBP judges each container and component vis-a-vis the “set” on a case-by-case basis. However, the rulings Extreme Linen cited as analogous in its submission, as well as in its meeting with this office, classify products distinguishable from the instant merchandise.
Extreme Linen first cites to New York Ruling (NY) N242222, dated June 14, 2013. However, that collection of bedding articles was packaging in a reusable toy box. This was clearly identified in pictures and the product’s marketing and thus constituted a separate product. It was not put up for the same use as the rest of the bedding articles. Therefore CBP held it was not a “retail set”.
Extreme Linen next points to NY N121335, dated September 28, 2010, which featured a bedding set packaged in an Eco-Vac bag. This bag, however, was a PVC compression bag with a press to lock closure and large air valve, whereby users withdraw the air from the bag through the valve via a vacuum cleaner, which compresses the contents to save space. The Eco-Vac bag was not put up for the same use as the rest of the bedding articles. Each item was therefore classified separately.
Extreme Linen cites NY N037935, dated September 16, 2008. However, this product was only 16” inches tall and constructed of cotton woven fabric with rope handles. It clearly had a decorative use separate and apart from the comforter, and as CBP noted this was not the usual packaging associated with a comforter.
Extreme Linen points to two rulings, HQ H968194, dated July 27, 2006 and HQ W968181, dated October 3, 2006, that considered PVC bags that share some characteristics, such as dimensions, with the bags at issue here. But in both of these rulings the bags at issue were imported empty and alone, as the only good under consideration. The HTSUS provisions under consideration was, appropriately, articles of plastic of Chapter 39. An analysis which considers whether a good is an article of conveyance or a household article is distinguishable from the instant analysis which considers the PVC bag as a part of a GRI 3(b) “set”.
Extreme Linen also argues that NY N027259, dated May 29, 2008, which also cites to W968181, as well as NY N208176, dated March 29, 2012, creates what Extreme Linen refers to as a “4 mils test.” However, again, the two rulings were considering PVC bags in their condition imported alone and empty. As such, CBP was considering the classification as among the various provisions for articles of plastic where the thickness of the plastic was relevant. The so-called “4 mils test” is not legal text, nor is it applicable here.
In summation, the instant Laurel Hill 7-piece comforter set consists of at least two different article which are, prima facie, classifiable in different headings, given that it includes a comforter, bed skirt, two pillow shams, three throw pillows, and the accompanying plastic storage container. It consists of products which are put up together to meet the particular need or specific activity of making up and maintaining or storing ones seasonal bedding. Lastly, they are put up in a manner suitable for sale directly to users without repackaging, because they are fully packaged together in the storage bag. As such, the Port properly concluded that this is a “set” for tariff classification purposes.
The ENs again provide guidance at this point in the analysis. “[T]he classification is made according to the … components taken together, which can be regarded as conferring on the set as a whole its essential character.” EN (X) to GRI 3(b). Estee Lauder, Inc. v. United States, supra, at 1296. Here, the comforter imparts the essential character, as it is the largest, bulkiest, and most prominent component of the set. This is consistent with previous CBP rulings on similar goods. See NY N240391, dated April 29, 2013, (classifying a bed in a bag set under the tariff heading which provides for the comforter, because it imparts the sets’ essential character).
HOLDING:
By application of GRI 3(b), the Laurel Hill 7-piece comforter set is classified under heading, 9404, HTSUS. It is specifically classified under subheading, 9404.90.85, HTSUS, which provides for, “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Other: Quilts, eiderdowns, comforters and similar articles.”
The column one, general rate of duty is 12.8% percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the U.S. International Trade Commission’s website at www.usitc.gov
You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and then public on the CBP website located at 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 Director