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HQ 954017


August 2, 1993

CLA-2 CO:R:C:F 954017 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 0904.12.0000; 2501.00.0000; 3401.11.5000; 3924.10.5000; 4421.90.5000; 4818.30.0000;

Mr. Gary E. Crawford
A.N. Deringer, Inc.
HC 76 P.O. Box 625
Jackman, ME 04945-0559

RE: Classification of pepper, salt, moist towelettes, plastic utensils, toothpicks, and paper napkins; Heading 0904, pepper; Heading 2501, salt; Heading 3401, paper or wadding, impregnated, coated, or covered with soap or detergent; Heading 3924, tableware, kitchenware, of plastics; Heading 4421, other articles of wood, toothpicks; Heading 4818, tablecloths and table napkins; GRI 3(b) set for retail sale; Subheading 9801.00.10; Superscope; HRL 951281

Dear Mr. Crawford:

This is in response to your letter of March 22, 1993, regarding the proper classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of various assortments of plastic utensils some of which include salt, pepper, towelettes, toothpicks or paper napkins. You submitted samples with your request for a binding ruling.

FACTS:

The merchandise at issue includes four product assortments for use in the fast food industry by aircraft, trains, etc. Assortment 1 consists of a plastic knife, fork, and spoon, in plastic packaging. In one scenario the articles are manufactured in the United States, packaged in Canada, and returned to the U.S., while in the other they are manufactured and packaged in Canada.

Assortment 2 consists of a plastic knife, fork, and spoon with a paper napkin, in plastic packaging. The articles are manufactured and packaged in Canada.

Assortment 3 consists of a plastic knife, fork, and spoon with a paper napkin, a packet of salt, a packet of ground black pepper, and a wooden toothpick, in plastic packaging. The articles are manufactured and packaged in Canada.

Assortment 4 consists of the articles included in Assortment 3 plus a moist towelette. We assume the towelette is coated or covered with either soap or detergent.

ISSUES:

Whether the merchandise is classifiable as a set for retail sale or is classifiable under the various headings providing for each of its individual components.

Whether the U.S. origin knife, fork, and spoon of Assortment 1 will qualify for the duty exemption under subheading 9801.00.10, HTSUSA, when after being packaged together in Canada they are returned to the U.S.

LAW AND ANALYSIS:

Tariff Classification

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, 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 GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Each assortment consists of various components which are classifiable as follows: the plastic knives, forks, and spoons in 3924 as tableware or kitchenware of plastics; the paper napkins in 4818 as table napkins; the salt in 2501; the pepper in 0904; the wooden toothpick in 4421 as other articles of wood; and the towelette in 3401 as paper, wadding, etc., impregnated, coated or covered with soap or detergent. Since separate HTSUSA headings provide for each item, the articles are classified by applying GRI 3(a) which explains, in pertinent part, that merchandise which is classifiable under two or more headings is classified under the heading which provides the most specific description of the article. However, all such headings are regarded as equally specific when each refers to only part of the items in a set put up for retail sale.

In accordance with EN X to GRI 3(b), a set put up for retail sale must: (a) contain at least two items classifiable in different headings; (b) contain items put up together to meet a particular need or carry out a specific activity; and (c) be put up for sale directly to users without repacking.

With the exception of Assortment 1, each assortment contains at least two items classifiable in different headings which, together, are ready for direct sale without repacking. We note that since Assortment 1 does not contain at least two items classifiable in different headings, it fails as a set and we classify each item pursuant to GRI 1.

In regard to Assortment 2, the plastic utensils and the paper napkin apparently are put up together to carry out the specific activity of eating a meal. Although the napkin performs a cleaning function, it allows the meal to be eaten neatly and comfortably. For these reasons, the articles are used and sold together.

Because Assortment 2 is a set, and the headings under which the items could be classified refer to only part of the items in the set, we turn to GRI 3(b) to classify the merchandise. This provides that the set is classified by the item which gives the set its essential character. "Essential character" is the attribute which strongly marks or serves to distinguish what an article, or set, is. EN VIII to GRI 3(b) explains that essential character may 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 article.

Because the plastic utensils represent a significant amount of the bulk, weight and value of the assortment and based on use distinguish the article, they impart the essential character. Accordingly, Assortment 2 is classified in heading 3924, the heading providing for the plastic utensils. The appropriate subheading is 3924.10.50.

In regard to Assortments 3 and 4, the plastic utensils, salt and pepper, and other items are not necessarily put together for a specific activity, but rather serve divergent functions or needs. While the utensils actually are used to eat a meal, the salt and pepper are used as seasonings to flavor or prepare a meal. Assortments 3 and 4 fail as a set, and we return to GRI 1 to classify each item separately in its own appropriate heading.

Duty-Free Treatment under Subheading 9801.00.10, HTSUSA

Subheading 9801.00.10, HTSUSA, provides for the free entry of products of the U.S. exported and returned without having been advanced in value or improved in condition by any process or manufacture or other means while abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1) are met.

You indicate that the U.S. origin plastic utensils of Assortment 1 merely will be packaged together in Canada and then returned to the U.S. In this case, the packaging neither advances the products in value nor improves them in condition. See Headquarters Ruling Letter 951281, issued June 18, 1992, where in citing Superscope, Inc. v. United States, 13 CIT 997, 727 F. Supp. 629 (1989), it was determined that U.S. origin inserts merely packaged abroad in toy sets and returned to the U.S. could be afforded duty-free treatment under 9801.00.10.

If the documentation requirements of 19 CFR 10.1 are met and the district director of Customs at the port of entry is satisfied that the items are, in fact, of U.S. origin, the plastic utensils should be afforded a free rate of duty.

HOLDING:

Assortment 1 - Plastic knife, fork, and spoon

The assortment is classified in subheading 3924.10.5000, HTSUSA, as tableware, kitchenware...of plastics:...other. Pursuant to the United States - Canada Free Trade Agreement (CFTA), the merchandise will be dutiable at 1.7 percent ad valorem if it is an originating good under General Note 3(c)(vii)(B), HTSUSA.

An allowance in duty may be made under subheading 9801.00.10, HTSUSA, for the cost or value of U.S. origin utensils merely packaged together in Canada and returned to the U.S.

Assortment 2 - Plastic knife, fork, and spoon with paper napkin

The assortment is classified, as a whole, in subheading 3924.10.5000, HTSUSA, as tableware, kitchenware...of plastics:...other, dutiable at 1.7 percent ad valorem if qualifying as originating goods under the CFTA.

Assortment 3 - Plastic knife, fork, and spoon with paper napkin, package of salt, package of pepper, and wooden toothpick;

Assortment 4 - Same as Assortment 3 plus a moist towelette

1. Plastic utensils 3924.10.5000- Tableware, kitchenware... of plastics:...other, dutiable at 1.7 percent ad valorem if qualifying under the CFTA.

2. Paper napkin 4818.30.0000- Toilet paper,...table napkins,...: tablecloths and table napkins, at a free rate of duty if qualifying under the CFTA.

3. Package of salt 2501.00.0000- Salt, at a free rate of duty.

4. Package of pepper 0904.12.0000- Pepper...: crushed or ground, at a free rate of duty.

5. Wooden toothpick 4421.90.5000- Other articles of wood: other: toothpicks...: toothpicks, dutiable at 2.1 percent ad valorem if qualifying under the
CFTA.

6. Moist towelette 3401.11.5000- Soap;...paper, wadding, ...impregnated, coated or covered with soap or detergent:...for toilet use...: other, at a free rate of duty if qualifying under the CFTA.

Sincerely,

John Durant, Director

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