Internal Advice Request; classification of Pop-up Cones/Signs

HQ H185698 July 24, 2015 CLA-2 OT:RR:CTF:TCM HQ H185698 TNA CATEGORY: Classification TARIFF NO.: 3926.90.99, 6307.90.98 Area Port Director Norfolk Service Port U.S. Customs and Border Protection 101 E. Main StreetNorfolk, VA 23510 Attn: WaiYin Lee, Senior Import Specialist RE: Internal Advice Request; classification of Pop-up Cones/Signs Dear Port Director: This is in response to your Request for Internal Advice, dated September 1, 2011, initiated by Newell Rubbermaid (“Rubbermaid”), concerning the proper classification of pop-up cones/signs under the Harmonized Tariff Schedule of the United States (“HTSUS”). FACTS: The subject merchandise consists of five different types of safety products intended to be placed near hazardous situations to warn approaching pedestrians of the danger. Four of these products are three dimensional, triangular, collapsible safety products. The fifth is in the form of a sign that the intended to be hung near the condition of which it warns. The first product at issue is Rubbermaid’s “9S01 Pop-Up Safety Cone,” which is made of fabric. It is 30 inches high, yellow, and in the shape of a triangle. The same warning is imprinted on each side of the cone: the word “Caution” in three different languages, surrounding a picture, inside a triangle, of someone slipping on a wet floor (wet floor symbol). On the top of the cone is an exclamation point in another triangle. The second product, Rubbermaid’s “9S00 Pop-Up Safety Cone,” is 20 inches high and is also made of fabric. While it does not have the picture of the exclamation point, the rest of its design is similar to the 9S01 in terms of the tri-lingual warning surrounding a picture of someone falling. The third type of cone, Rubbermaid’s “9S07-25 Folding Safety Cone,” is made of fabric and has a spring steel to support it. It is 20 inches in height and contains a picture of someone falling within a triangle (wet floor symbol). It does not have any words printed on it. The fourth item at issue here, Item Number 6110, is plastic and cylinder-shaped. It has the word “Caution” imprinted on it in multiple languages. It also contains the wet floor symbol. Both types of warnings are printed on two sides of this item, which measures 25 inches in length and is designed to be hung in narrow areas. Item Number 6112 is a plastic, triangular sign to stand on the floor or pavement that can be collapsed into a rectangular shape when not in use. It contains the word “Caution” in multiple languages, as well the wet floor symbol. These warnings are printed on two sides of the item. Rubbermaid is undergoing a Focused Assessment and sought classification guidance on the subject merchandise from the Port of Norfolk. The Port, citing a number of prior CBP rulings, classified Item Numbers 6110 and 6112 in heading 3926, HTSUS, as other articles of plastic, and the 9S00, 9S01, and 9207-25 cones in heading 6307, HTSUS, as other made up articles of textiles. See NY N006237, dated February 13, 2007; NY N006239, dated February 8, 2007; NY R03728, dated May 8, 2006; NY R03729, dated May 8, 2006. Rubbermaid sought this Internal Advice after disagreeing with the Port. The company advocates for classification of all five items in heading 4911, HTSUS, as other printed matter. ISSUE: Whether the subject safety products are classified in heading 4911, HTSUS, as other printed matter; in heading 3926, HTSUS, as other articles of plastic; or in heading 6307, HTSUS, as other articles of textile? 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, GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 4911 Other printed matter, including printed pictures and photographs: 6307 Other made up articles, including dress patterns: Legal Note 2 to Section VII, HTSUS, of which heading 3926, HTSUS, is a part, states, in pertinent part, the following: Except for the goods of heading 3918 or 3919, plastics, rubber and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in chapter 49. Legal Note 5 to Chapter 49, HTSUS, states the following: Subject to note 3 of this chapter, heading 4901 does not cover publications which are essentially devoted to advertising (for example, brochures, pamphlets, leaflets, trade catalogs, yearbooks published by trade associations and tourist promotional literature). Such publications are to be classified in heading 4911. 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 HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 3926, HTSUS, provides, in pertinent 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. The General EN to Chapter 49, HTSUS, provides, in pertinent part: With the few exceptions referred to below, this Chapter covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations… Also, printed textile articles such as scarves or handkerchiefs, in which the printing is mainly for decorative or novelty purposes and does not affect the essential character of the goods, embroidery fabrics and prepared tapestry canvases bearing printed designs fall in Section XI. Goods of heading 39.18, 39.19, 48.14 or 48.21 are also excluded from this Chapter, even if they are printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods…. In general the goods of this Chapter are executed on paper but the goods may be on other materials provided they have the characteristics described in the first paragraph of this General Explanatory Note. However, letters, numbers, sign-plates and similar motifs for shop signs and shop windows, bearing a printed picture or text, of ceramics, of glass, or of base metal are classifiable in headings 69.14, 70.20 and 83.10 respectively, or in heading 94.05 if illuminated. In addition to the more common forms of printed products (e.g., books, newspapers, pamphlets, pictures, advertising matter), this Chapter covers such articles as : printed transfers (decalcomanias); printed or illustrated postcards, greeting cards; calendars, maps, plans and drawings; postage, revenue or similar stamps. Microcopies on opaque bases, of articles of this Chapter, are classified in heading 49.11. Microcopies are obtained by means of an optical device which greatly reduces the dimensions of the documents photographed; microcopies normally need to be read by means of a magnifying device. The EN to heading 4911, HTSUS, provides, in pertinent part: This heading covers all printed matter (including photographs and printed pictures) of this Chapter (see the General Explanatory Note above) but not more particularly covered by any of the preceding headings of the Chapter…. The heading includes the following in addition to the more obvious products:   (1)   Advertising matter (including posters), year books and similar publications devoted essentially to advertising, trade catalogues of all kinds (including book or music publishers’ lists, and catalogues of works of art) and tourist propaganda. Newspapers, periodicals and journals, whether or not containing advertising material, are however excluded (heading 49.01 or 49.02, as appropriate).   (2)   Brochures containing the programme of a circus, sporting event, opera, play or similar presentation.   (3)   Printed calendar backs with or without illustrations.   (4)   Schematic maps.   (5)   Anatomical, botanical, etc., instructional charts and diagrams.   (6)   Tickets for admission to places of entertainment (e.g., cinemas, theatres and concerts), tickets for travel by public or private transport and other similar tickets.   (7)   Microcopies on opaque bases of the articles of this Chapter. (8)   Screens made by printing a film of plastics with letters or symbols to be cut out for use in design work…   (9)   Maximum cards and illustrated firstday covers not bearing postage stamps (see also Part (D) of the Explanatory Note to heading 97.04).   (10) Self-adhesive printed stickers designed to be used, for example, for publicity, advertising or mere decoration, e.g., “comic stickers ” and “ window stickers ”.   (11) Lottery tickets, “scratch cards”, raffle tickets and tombola tickets. The EN to heading 6307, HTSUS provides, in pertinent part: This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature…. The heading excludes textile articles classified in more specific headings of this Chapter or of Chapters 56 to 62. It further excludes:.. (c) Printed matter (Chapter 49). Articles of plastics that are printed with motifs, characters or pictorial representations that are not merely incidental to the primary use of the goods are classified in Chapter 49, HTSUS. See Note 2 to Section VII. Furthermore, textile items that are classified as “printed matter” are excluded from heading 6307, HTSUS in favor of classification in Chapter 49, HSTUS. See EN 63.07. As a result, we first examine classification in heading 4911, HTSUS. Rubbermaid argues for classification of the subject merchandise in heading 4911, HTSUS, as other printed matter. The company argues that the subject cones do not perform a barrier function because they do not impede, obstruct, hinder or block the passage of approaching pedestrians, and that the writing and pictures on the cones are warnings that alert pedestrians, much like a sign that is posted or displayed. Rubbermaid concludes that the printed warnings and pictures are not merely incidental to the primary use of the goods. In support of this argument, Rubbermaid cites HQ 960551, dated September 30, 1997; NY E86848, dated September 20, 1999; NY N044061, dated December 9, 2008; and NY I88082, dated November 18, 2002. Rubbermaid also cites NY 802398, dated  September 30, 1994; NY G88560, dated January 4, 2001; and NY N082260, dated November 5, 2009, as further support for the proposition that even articles that perform a barrier function have been classified in heading 4911, HTSUS. The company concedes, however, that these rulings classify merchandise that is not similar to the subject cones. Chapter 49, HTSUS, “covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations.” See General EN to Chapter 49, HTSUS. In addition, in HQ 967463, dated February 10, 2005, CBP, in examining the classification of plastic wrappers used for Lindt chocolate, decided between headings 3921 and 4911, HTSUS. There, CBP reasoned that the trademarked logos on the plastic wrapping were merely incidental to the product’s use in protecting the chocolate it wrapped, even though these logos provided information to the consumer about the chocolate itself. As a result, the plastic wrappers were classified in heading 3921, HTSUS, according to their constituent material. See HQ 967463; see also HQ H236523, dated July 2, 2014. This analysis is consistent with further prior CBP rulings that have classified merchandise in heading 4911, HTSUS, when its sole was to convey a message, whether that message was utilitarian or for advertising purposes. In those rulings, the material on which the message was written served no other purpose than as a physical conveyance for that message. See, e.g., NY 841653, dated June 21, 1989 (finding that “Orangina” plastic communication totems used as free standing table top displays in restaurants and hotels are classified in heading 4911, HTSUS); NY 805469, dated December 28, 1994 (finding that compressed paper cubes bearing a printed advertising message are classified in heading 4911, HTSUS); NY 813232, dated August 18, 1995 (finding that sheets of plastic bearing words or logos to be used as signs are classified under heading 4911, HTSUS); NY J80637, dated February 11, 2003 (a bottle shaped piece of PVC plastic bearing the word “7 Up” fitted to a wire and a suction cup so that it may be placed on a glass surface was classified under heading 4911, HTSUS); NY N003310, dated November 29, 2006 (polyester textile panels bearing company logos or commercial information are classified under heading 4911, HTSUS); and NY N121337, dated September 29, 2010 (finding that a plastic sign which hangs in the aisle of a store and explains “how to choose a padlock” is classified under heading 4911, HTSUS). This analysis is also consistent with prior CBP rulings that classify fabric or plastic safety items that are similar to the subject merchandise according to their constituent material rather than as other printed material of heading 4911, HTSUS. See, e.g., NY N006237, dated February 13, 2007 (classifying a 15” H x 14.75” W nylon fabric safety cone in heading 6307, HTSUS); NY N006239, dated February 8, 2007 (classifying a 21” H x 20” W nylon textile fabric safety cone in heading 6307, HTSUS); NY R03728, dated May 8, 2006 (classifying cone-shaped plastic safety floor signs in heading 3926, HTSUS); NY R03729, dated May 8, 2006 (classifying plastic safety floor signs in heading 3926, HTSUS); NY L81797, dated January 18, 2005 (classifying four plastic inflatable safety signs in heading 3926, HTSUS); NY I88082 (classifying safety signs made of textile and PVC in heading 6307, HTSUS). In each of these rulings, the merchandise at issue had the dual use of the words printed on them and the physical barrier they formed. In each instance, CBP found that the words printed on the merchandise warned approaching pedestrians, but it was the physical barrier formed by the rest of the merchandise that formed the biggest deterrent to pedestrians. In some of these rulings, as in the present case, the importer suggested heading 4911, HTSUS, as a possible classification. In response, CBP stated that: the large sizes, bright colors and symbolic shapes of the products, rather than the printing, are the primary features that alert motorists. The inflatable devices function as much as barriers as they do as signs. In these styles, the function performed by the printed caution advice is incidental to the functions performed by the inflatable plastic warning devices. See NY L81797. See also NY R03728; NY R03729. In the present case, we examined Rubbermaid’s description of the subject merchandise, as well as pictures of the subject merchandise that the company submitted and picture that are on the company’s website. From these, it is clear that the subject safety products not only warn pedestrians of impending danger, but also mark barriers and hazardous areas, diverting the oncoming traffic around the danger to which the safety products refer. Although the printed portion of the subject merchandise gives a written warning, the three-dimensional objects themselves provide a physical warning that creates a physical diversion and form a physical barrier between the pedestrian and the danger. Furthermore, contrary to the suggestions of Rubbermaid, this three-dimensional merchandise would still be able to warn pedestrians from the danger, and provide that physical barrier even if there were no words or symbols printed on them. In that sense, the subject merchandise is similar to merchandise such as the familiar orange and white traffic cones that are placed in roadways to steer traffic around accidents or holes in the pavement. These cones perform these tasks without any printed warnings on them. Furthermore, this ability to convey both warnings and protection from danger without written or pictorial warnings also distinguishes the subject merchandise from items such as two-dimensional signs whose printed warnings make up a more important part of the message they convey. As such, the printed matter on the subject merchandise is merely incidental to the functions performed by the physical warning devices. This conclusion is supported by the fact that Rubbermaid sells similar safety products that are marketed as barriers but which do not contain any words on them. These products only have an exclamation point in a triangle as a warning symbol. See, e.g., http://www.rubbermaidcommercial.com/rcp/products/detail.jsp?categoryCode=safety&subCategoryCode=safety_barriers&rcpNum=9S11&categoryCode_subCategoryCode_rcpNum=safety_safety_barriers_9S11. In fact, in examining Rubbermaid’s products, both the ones at issue in this Request for Internal Advice and the line of products that Rubbermaid markets as barriers to warn against accidents, we note that all of these products have similar features. They are all yellow, with black words or warning symbols on them and are all similar in height and width. In addition, although some are in cone shape and some are more rectangular, they all have a similar functional shape that allows them to be placed over or around the hazard about which they warn. See, e.g., http://www.rubbermaidcommercial.com/rcp/products/subcategory.jsp?categoryCode=safety&subCategoryCode=safety_safety_cones. As such, all of these products are easily used as physical barriers that prevent pedestrians and motorists from encountering hazardous situations, regardless of the fact that Rubbermaid does not advertise the subject merchandise as barriers. By contrast, the merchandise at issue in each of the rulings that Rubbermaid cites can be distinguished from the subject pop-up cones in that they were all single-use items whose only use was to convey the written message they provided. Unlike the subject merchandise, these items had no other use. In HQ 960551, for example, CBP classified small plastic signs of the kind that sit on tables in restaurants to welcome customers and inform them which credit cards are accepted in heading 4911, HTSUS. In NY E86848, CBP classified woven nylon warning signs that would be added to cones post-importation in heading 4911, HTSUS. Thus, as imported, they were simply pieces of fabric with warnings printed on them. In NY N044061, CBP classified a warning sign made of polyester fabric with a flat wire frame in heading 4911, HTSUS. This sign was of insubstantial construction, used on residential streets to warn drivers that children are at play. In all of these rulings, the primary use of the goods was to convey a written message or warning. Rubbermaid also cited In NY I88082 in support of classification in heading 4911, HTSUS. There, CBP classified textile warning signs made of PVC backed with textile material with rods inserted into them. These two-dimensional signs, which were meant to be hung on a wall, and were only used to warn shoppers that access to an aisle in a store is temporarily restricted. In NY I88082, the importer argued for classification in heading 4911, HTSUS, but CBP specifically stated that classification there was precluded because: the substantial size, strength, and durability of the aisle blockers, as you refer to them, enable them to carry out their function – blocking an aisle – by creating a physical barrier. Although they also bear a printed warning, it is of secondary importance to the physical nature of the barrier that is created. If these items were meant to function merely as signs, there would be no need for the type of construction they have. They are not essentially printed matter. See NY I88082. Based on this reasoning, CBP classified these signs in heading 6307, HTSUS. This ruling supports CBP’s conclusion in the present case that the subject merchandise cannot be classified in heading 4911, HTSUS, either. Having determined that the subject merchandise cannot be classified in heading 4911, HTSUS, and we examine alternate headings. Item Number 6110 and Item Number 6112 are made of plastic. Heading 3926, HTSUS, provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914.” The heading includes articles of plastics that are not provided for elsewhere in the Nomenclature. See EN 39.26. Item Number 6110 and Item Number 6112 meet these terms. It is not in dispute that they are made of plastic as defined by Note 1 to chapter 39, HTSUS. Furthermore, they cannot be described by other headings in the tariff schedule, including the other headings of Chapter 39, HTSUS. As a result, Item Number 6110 and Item Number 6112 are classified in heading 3926, HTSUS, as other plastic articles. This conclusion is consistent with prior CBP rulings that classify similar plastic safety items in heading 3926, HTSUS. See, e.g., NY R03728 (classifying cone-shaped plastic safety floor signs in heading 3926.90.98, HTSUS); NY R03729 (classifying plastic safety floor signs in heading 3926, HTSUS); NY L81797, dated January 18, 2005 (classifying four plastic inflatable safety signs in heading 3926, HTSUS). The remaining items at issue, the “9S01 Pop-Up Safety Cone,” the “9S00 Pop-Up Safety Cone,” and the “9S07-25 Folding Safety Cone” are made of fabric. Heading 6307, HTSUS, provides for “Other made up articles, including dress patterns.” The heading includes made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. See EN 63.07. The subject “9S01 Pop-Up Safety Cone,” the “9S00 Pop-Up Safety Cone,” and the “9S07-25 Folding Safety Cone” are described by these terms. They are made of textile and have been precluded from classification in other headings of the tariff schedule, including headings of Chapter 63, HTSUS. As a result, these items are classified in heading 6307, HTSUS, as other textile articles. This conclusion is consistent with prior CBP rulings that have classified similar safety items made of fabric in heading 6307, HTSUS. See, e.g., NY N006237 (classifying a 15” H x 14.75” W nylon fabric safety cone in heading 6307, HTSUS); NY N006239 (classifying a 21” H x 20” W nylon textile fabric safety cone in heading 6307, HTSUS); NY I88082. Rubbermaid argues that the subject merchandise does not meet the definition of a barrier. Without citing a specific lexicographic sources, Rubbermaid lists a number of definitions of the term “barrier” that include “a structure or object that impedes free movement”; “any condition that makes it difficult to make progress or achieve and objective”; “anything serving to maintain separation by obstructive vision or access”; “an obstruction; anything which hinders approach or attack”; among other definitions. Rubbermaid concludes that because the subject merchandise does not meet the definition of a barrier, that it must be classified in heading 4911, HTSUS. However, Note 2 to Section VII, HTSUS, requires that we look to the primary use of the goods. Clearly, the primary use of the subject merchandise is not to convey a printed message. Lastly, Rubbermaid also cites NY 802398, NY G88560, and NY N082260 in support of its argument that the subject merchandise should be classified as other printed material of heading 4911, HTSUS. In NY 802398 and NY G88560, the merchandise was described as yellow “Caution” tape. A strip of tape is a two-dimensional product such like a sign. In NY N082260, the merchandise was described as boundary tape printed with the words “No Trespassing—No Hunting”. It was customized for the specific activity of hunting, and was available in yellow, orange and purple. The customized tape warned with color and with words, and both the color and the words had meaning. From our research at http://www.worksafely.com/safety-equipment/barricadetape.aspx, we have discovered that similar tape is printed with different colors, including striped, each color having its own meaning. Most relevant to the present case, the combination of black and yellow denotes physical hazards. This required color coding is specified by Occupational Safety and Health Administration (“OSHA”) regulations, which specify the required coloring but nothing else. Furthermore, barricade tape also has increased visibility properties and can be used even in harsh weather conditions such as fog, blizzard or heavy rain. Other sources describe this type of tape as only a “minor impediment to prevent accidental entrance to that area or situation.” See http://en.wikipedia.org/wiki/Barricade_ tape. Therefore, it is clear from the lettering and color of this tape that conveying a message is the primary use of of the goods. This is in direct contrast to the subject merchandise. As a result, NY 802398, NY G88560, and NY N082260 are distinguished from the present case, and the subject merchandise is classified not in heading 4911, HTSUS, but rather according to its constituent material. HOLDING: By application of GRI 1, the subject 9S01 Pop-Up Safety Cone, 9S00 Pop-Up Safety Cone and 9S07-25 Folding Safety Cone are classified in heading 6307, HTSUS. They are specifically provided for in subheading 6307.90.98, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The applicable duty rate is 7%. Item Number 6110 and Item Number 6112, the plastic safety items, are classified in heading 3926, HTSUS. They are specifically provided for in subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The applicable duty rate is 5.3%. 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 to the public on the CBP Home Page on the World Wide Web 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