OT:RR:CTF:CPM H287723 APP
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
U.S. Customs and Border Protection
1699 Phoenix Parkway, Suite 400
College Park, Georgia 30349
Attn.: Michael Phillips, Import Specialist
RE: Protest and Application for Further Review Number 1703-16-100467; Tariff classification of Sno-Markers, Mini Sno-Markers and a Sno-Tree Kit
Dear Mr. Phillips:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1703-16-100467, timely filed on December 27, 2016, on behalf of Target General Merchandise, Inc. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Ideal’s Sno-Markers (DPCI 091-05-0534), Mini Sno-Markers (DPCI 091-05-0543), and Sno-Tree Kit (DPCI 091-05-0545). No samples have been provided.
FACTS:
Ideal’s Sno-Markers (DPCI 091-05-0534) and Mini Sno-Markers (DPCI 091-05-0543) (collectively “Sno-Markers” or “markers”) consist of non-toxic color packets and empty plastic, marker-shaped containers. The markers are used to draw images in the snow by spraying with the squeeze containers. To use the markers, the user mixes the color packet with warm water and pours the subsequent solution into the marker-shaped containers. Below are the images of the Sno-Markers supplied by protestant in its submission:
Ideal’s Sno-Tree Kit (DPCI 091-05-0545) is used to decorate a tree made from snow. The user must first build a tree out of snow and then color it with the spray bottle containing green non-toxic color pack. The user can decorate the tree using the included plastic decorations consisting of a yellow star tree topper, six red candy canes, and six ball ornaments (three green balls and three purple balls). The user can also use the included Sno-Marker containing a blue non-toxic color pack to further decorate the tree with blue snowflakes. Below are the images of the Sno-Tree Kit supplied by protestant in its submission:
On June 16, 2017, CBP’s Laboratories and Scientific Services Directorate (“LSSD”) in Savannah, Georgia reviewed a dye pack supplied by protestant and issued a laboratory report concluding that the green and orange colored powder was “composed of sugar (sucrose) and
a … coloring matter.” The orange colored powder contained “95% sugar (sucrose) by weight” and the green colored powder was composed of “92% sugar (sucrose) by weight.”
The December 27, 2016 Protest and AFR cover 25 entries of the subject Sno-Markers and Sno-Tree Kit made from August 17, 2015 to November 22, 2015, and liquidated on and after July 1, 2016. The Sno-Markers were entered 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” and the Sno-Tree Kit was entered under subheading 3924.90.56, HTSUS, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.”
The Sno-Markers and the Sno-Tree Kit were liquidated as entered. Protestant claims that the Sno-Markers should be classified under subheading 3212.90.00, HTSUS, which provides for “Pigments (including metallic powders and flakes) dispersed in nonaqueous media, in liquid or paste form, of a kind used in the manufacture of paints (including enamels); stamping foils; dyes and other coloring matter put up in forms or packings for retail sale: Other” and the Sno-Tree Kit under subheading 9505.10.25, HTSUS, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other.”
ISSUE:
What is the proper classification of the Sno-Markers and Sno-Tree Kit?
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed within 180 days of liquidation of the entries. See 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 Number 1703-16-100467 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed in this matter involves questions of law and fact that have not been ruled upon by the Commissioner of CBP or his designee or by the Customs Courts.
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 (“AUSR”). The GRIs and the AUSR are part of the HTSUS, and are 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 order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 3(b) 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.” Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS headings under consideration are as follows:
3212 Pigments (including metallic powders and flakes) dispersed in nonaqueous media, in liquid or paste form, of a kind used in the manufacture of paints (including enamels); stamping foils; dyes and other coloring matter put up in forms or packings for retail sale:
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:
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
Note 2(y) to Chapter 39, HTSUS, provides that this chapter does not cover articles of Chapter 95, HTSUS.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
EN (VIII) to GRI 3(b), states, “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.”
EN (X) to GRI 3(b) defines the term “set” in GRI 3(b) as follows:
(X) For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings …
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
EN 32.12 provides, in relevant part:
(C) DYES AND OTHER COLOURING MATTER PUT UP IN FORMS OR PACKINGS FOR RETAIL SALE
These are non-film forming products which normally consist of mixtures of colouring matter with other substances (e.g., inert diluents, surface-active products which encourage the penetration and fixation of the colouring matter).
Mordants are also sometimes added. They fall here only if:
(1) In packings for retail sale (e.g., sachets of powder, bottles of liquid) put up for use as dyes, or
(2) In forms (e.g., balls, tablets or the like) clearly designed for retail sale.
The dyes covered by this heading are mainly those used for domestic purposes and usually sold as “household dyes” (e.g., dyes for clothes, for shoes, for furniture). The heading also includes special dyes used in laboratories, e.g., to colour microscopic preparations.
EN 39.24 provides, in relevant part, that:
This heading covers the following articles of plastics: …
(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).
EN 39.26 provides, in relevant part, that:
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.
They include:
(1) Articles of apparel and clothing accessories (other than toys) made by sewing or sealing sheets of plastics, e.g., aprons, belts, babies’ bibs, raincoats, dress-shields, etc. Detachable plastic hoods remain classified in this heading if presented with the plastic raincoats to which they belong ….
(3) Statuettes and other ornamental articles ….
(12) Various other articles such as fasteners for handbags, corners for suit-cases, suspension hooks, protective cups and glides for placing under furniture, handles (of tools, knives, forks, etc.), beads, watch “glasses”, figures and letters, luggage label holders.
EN 95.05 provides, in relevant part, that:
This heading covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non durable material. They include:
(1) Festive decorations used to decorate rooms, tables, etc. (such as garlands, lanterns, etc.); decorative articles for Christmas trees (tinsel, coloured balls, animals and other figures, etc); cake decorations which are traditionally associated with a particular festival (e.g., animals, flags).
(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees, nativity scenes, nativity figures and animals, angels, Christmas crackers, Christmas stockings, imitation yule logs, Father Christmases … The heading excludes statuettes, statues and the like of a kind used for decorating places of worship.
Protestant argues that the Sno-Markers are sets whose essential character is imparted by the packaged coloring matter classified in heading 3212, HTSUS. Protestant further asserts that the Sno-Tree Kit is classifiable as a festive article in heading 9505, HTSUS consistent with Midwest of Cannon Falls, Inc. v. United States, 20 CIT 123, 129 (1996), and is excluded from Chapter 39, HTSUS, by virtue of Note 2(y) to Chapter 95, HTSUS.
The Sno-Markers consist of ten packets of coloring matter in various colors and five empty plastic, marker-shaped containers. To use the markers, the user mixes the coloring matter with water and pours the subsequent solution into the marker-shaped containers. The user uses the markers to draw images in the snow. The images disappear when the snow melts. The coloring matter and Sno-Markers are put up in sets for retail sale and satisfy all three criteria under EN (X) to GRI 3(b). They are classifiable in different tariff headings (the coloring matter in heading 3212, HTSUS, and the plastic, marker-shaped containers in heading 3926, HTSUS). The kit is put up together to draw images in the snow. At the time of import, the Sno-Markers are packaged for retail sale and do not require intermediate packaging. Pursuant to EN (VIII) to GRI 3(b), the coloring matter imparts the essential character because it allows users to create snow art and can still function as coloring matter without the markers. Without the coloring matter, the markers cannot function. Accordingly, the markers are classifiable in heading 3212, HTSUS, specifically in subheading 3212.90.00, HTSUS.
Next, we will classify the Sno-Tree Kit. If the instant Sno-Tree Kit is classifiable in Chapter 95, HTSUS, it cannot be classified in Chapter 39, HTSUS pursuant to Chapter 39,
Note 2(y), HTSUS. Thus, we will first determine whether the Sno-Tree Kit is classifiable as a festive article of heading 9505, HTSUS, as protestant claims.
The Court of Appeals for the Federal Circuit (“CAFC”) has laid out the following two-prong test for determining whether a product is a festive article of heading 9505, HTSUS:
“(1) [I]t must be closely associated with a festive occasion and (2) the article [must] be used or displayed principally during that festive occasion.” Michael Simon Design, Inc. v. United States, 501 F.3d 1303, 1322 (Fed. Cir. 2007) (citing Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423, 1429 (Fed. Cir. 1997)). The Court of International Trade (“CIT”) has clarified that in addition to these two criteria, to qualify as festive articles, items “must be ‘closely associated with a festive occasion’ to the degree that ‘the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.’” Michael Simon Design, 501 F.3d at 1322-23 (quoting Park B. Smith, Ltd. v. United States, 25 CIT 506, 509 (2001)).
The subject Sno-Tree Kit does not satisfy the first prong of the festive articles test set forth in Michael Simon Design, supra. Even though a Christmas tree is closely associated with Christmas, a Christmas tree is not included in the kit. The users instead must build their own tree out of snow, using the included coloring matter and applicator to paint it green. The Sno-Marker and Green Sno-Spray are non-festive articles because they are not closely associated with a festive occasion. In addition, the yellow tree topper, plastic canes, and plastic ball ornaments are non-festive articles because they have the appearance of plastic geometrical shapes that are not intrinsically linked to Christmas. All the decorative articles in the set lack the crown and hook at the top associated with Christmas tree ornaments, and the plastic canes further lack the red and white stripes traditionally associated with candy canes. See Wilton Inds., supra.
The kit also does not satisfy the second prong of the Michael Simon Design test because the Sno-Marker, spray bottle with green coloring matter, and plastic geometric shapes are not used or displayed principally during Christmas. The painted and decorated snow tree is not intended to replace the traditional evergreen or artificial Christmas tree decorated with Christmas ornaments. The plastic geometric shapes do not have hooks to hang on a tree and are not suitable to be used as indoor decorations during the Christmas season.
In addition, it would not be “aberrant” to use the Sno-Marker, green Sno-Spray, and plastic geometrical shapes during the winter season while playing in the snow. There is nothing that limits their use to Christmas. See Park B. Smith, Ltd., supra. Unlike the Sno-Tree Kit, the pumpkin making kits in the rulings cited by protestant, see above, consisted of shapes in the form of a black cat, bat, witch, monster, ghost, spider, or jack-o’-lantern, which are symbols associated with Halloween. See Wilton Inds., supra; Midwest of Cannon Falls, 122 F.3d at 1429 (noting that jack-o’-lantern is a symbol closely associated with Halloween); NY H88699, dated March 8, 2002 (stating that jack-o’-lanterns “depict recognized symbols of Halloween.”). Therefore, the Sno-Tree Kit is not a festive article of heading 9505, HTSUS, and is not excluded from Chapter 39, HTSUS, by virtue of Note 2(y) to this chapter.
Since the Sno-Tree Kit is a set, it cannot be classified under GRI 1, and we must apply the remaining GRIs. When goods are, prima facie, classifiable under two or more headings, classification shall be made pursuant to GRI 3. GRI 3(a) is not applicable because the respective headings for each of the separate components of the set are equally specific. The components of the Sno-Tree Kit satisfy all three criteria under EN (X) to GRI 3(b). They are classifiable in different headings (the coloring packs in heading 3212, HTSUS, and the plastic marker, spray bottle, and plastic decorations in heading 3926, HTSUS). The kit is put up together to enable the user to paint and decorate a snow tree. At the time of import, the kit is put up in a manner suitable for sale directly to end users without repacking. Pursuant to EN (VIII) to GRI 3(b), the green and blue coloring packets that come with the Sno-Marker and spray bottle impart the essential character. The green and blue color packs are essential for the building of the snow tree. Without the coloring matter, the plastic spray bottle and marker cannot function. One can form mounds of snow into one giant tree sculpture or many small tree sculptures but they will not resemble evergreen trees if they are not painted green. The blue coloring matter allows users to draw other images on or around the green painted snow tree. Although they impart the greatest bulk of the set, the plastic ornaments have no purpose or use other than to decorate the green snow tree. Thus, the green and blue coloring matter is the “most outstanding and distinctive characteristic” of the Sno-Tree Kit and imparts the kit with its essential character. As a result, the kit is classifiable in heading 3212, HTSUS via GRI 3(b).
Accordingly, the instant Sno-Markers and Sno-Tree Kit are both classifiable in heading 3212, HTSUS, specifically under subheading 3212.90.00, HTSUS.
HOLDING:
By application of GRIs 1 and 6, and 3(b), the subject Sno-Markers and Sno-Tree Kit are classified under heading 3212, HTSUS, specifically under subheading 3212.90.00, HTSUS, which provides for “… dyes and other coloring matter put up in forms or packings for retail sale: Other.” The column one, general rate of duty at the time of entry was 3.1% 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 at https://hts.usitc.gov/current.
You are instructed to GRANT the protest with respect to the Sno-Markers and to DENY the protest with respect to the Sno-Tree Kit, except to the extent reclassification of the kit as indicated above results in a partial allowance. A copy of this decision should be attached to the Form 19 Notice of Action.
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, through its counsel, no later than sixty (60) days from the date of this letter. Any reliquidation of the entry, in accordance with the decision, must be accomplished prior to mailing of the decision. Sixty days from the date of this letter, the Office of Trade, Regulations and Rulings will make this letter available to CBP personnel, and to the public on the CBP Home Page 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 Division