Internal Advice; Tariff classification of a plastic water carrying bag with a secure screw-on cap and an anti-slip tub liner

HQ H266049 May 15, 2017 OT:RR:CTF:TCM H266049 APP CATEGORY: Classification TARIFF NO.: 3926.90.99 Area Port Director U.S. Customs and Border Protection 200 East Bay Street Charleston, South Carolina 29401 Attn: Vanessa Marks, CBP Import Specialist RE: Internal Advice; Tariff classification of a plastic water carrying bag with a secure screw-on cap and an anti-slip tub liner Dear Area Port Director: This letter is in response to your request for internal advice dated May 19, 2015, pertaining to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a product named “Worx Aerocart Water Bag” (WA0229), which is used to carry water for irrigation, livestock or mixing concrete, and is imported by Positec USA, Inc. Our response follows. FACTS: The subject Worx Aerocart Water Bag is a collapsible plastic bag with a secure screw-on cap and an anti-slip tub liner used to transport water. You advise that the water carrying bag with a secure screw-on cap and anti-slip tub liner were packaged together upon importation in the same manner as they were presented to the customer for retail sale. You also advise that the tub liner does not seem to differ from the ones used under rugs and is most likely made of plastics.
The plastic bag is designed for the purpose of mounting on a wheelbarrow, which is sold separately. The water carrying bag is described on the section of the Worx website dedicated to “Aerocart Accessories” as follows: Converts your Aerocart into a mobile watering station in just seconds. Equipped to carry up to 20 gallons of water for irrigation, livestock or mixing concrete. Lightweight, durable and includes an anti-slip tub liner that works with any wheelbarrow. ISSUE: Whether the instant water carrying bag with a secure screw-on cap and a tub liner attachment is classified in heading 8716, HTSUS, as part of a wheelbarrow or heading 3926, HTSUS, as an 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 may then be applied. GRI 2(b) provides that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3(a) states that goods should be classified according to the heading which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of the items in a set put up for retail sale. 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,” and where this is not possible, “under the heading which occurs last in numerical order among those which equally merit consideration.” The HTSUS provisions under consideration are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: 8716 Trailers and semi-trailers; other vehicles, not mechanically propelled; and parts thereof: Note 1 to Chapter 39, HTSUS, defines “plastics” as: [T]hose materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerization or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticizer) by molding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence. Throughout the tariff schedule, any reference to “plastics” also includes vulcanized fiber. The expression, however, does not apply to materials regarded as textile materials of section XI. Note 2 to Chapter 39, HTSUS, states that this chapter does not cover “[p]arts of aircraft or vehicles of section XVII.” Note 3 to Section XVII, HTSUS, which covers Chapters 86 through 89, reads, in relevant part: 3. References in Chapters 86 to 88 to “parts” or “accessories” do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part or accessory. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The ENs to Heading 3926, HTSUS, provide, 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. The ENs to Heading 8716, HTSUS, state, in relevant part: (B)  Hand- or foot-propelled vehicles. This group includes: . . . (2)  Wheelbarrows, luggagetrucks, hoppertrucks and tippingtrucks . . . . This heading also includes parts of the vehicles mentioned above, provided the parts comply with both the following conditions:   (i)   They must be identifiable as being suitable for use solely or principally with such vehicles; and   (ii)  They must not be excluded by the provisions of the Notes to Section XVII (see the corresponding General Explanatory Note). In light of the exclusion set out in Note 2 to Chapter 39, HTSUS, the water carrying bag should be classified under heading 8716, HTSUS, only if it is a part, which is “suitable for use solely or principally” with a vehicle of Chapter 86, HTSUS and is not excluded by the Notes to Section XVII, HTSUS. We will next determine if the water carrying bag is part of a wheelbarrow. The courts have considered the nature of “parts” under the HTSUS and two distinct, though not inconsistent, tests have resulted. See Bauerhin Techs. Ltd. P’ship & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997). The first test, articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322, 324, T.D. 46851 (1933), requires a determination of whether the imported item is “an integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” (citations omitted). “The mere fact that two articles are designed and constructed to be used together, does not necessarily make either a part of the other.” Id. (citations omitted). The court concluded that even though tripods and cameras were designed to be used together, “in the ordinary use of a camera, the utilization of a tripod is optional.” Id. at 325. Since the tripods were not essential to the use of the cameras, there was no basis for classifying them as parts of cameras. The second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9, 13-14, C.A.D. 602 (1955), states that an imported article “dedicated irrevocably” for use with another article is part of that article within the meaning of the HTSUS. Since the “imported superchargers at the time of importation [were] dedicated solely for use upon automobiles,” and “since when applied to that use they clearly [met] the definition of ‘parts’ established by the Willoughby case,” they were classified as parts of automobiles. Id. at 14. Reconciling Willoughby Camera with Pompeo, the Court of Appeals for the Federal Circuit concluded in Bauerhin Techs., 110 F.3d at 779 that where “an imported item is dedicated solely for use with another article and is not a separate and distinct commercial entity, Pompeo is closer precedent . . . and an imported item dedicated solely for use with another article is ‘part’ of that article within the meaning of the HTSUS.” In the instant matter, the subject water carrying bag is not designed or marketed as an “integral, constituent, or component part” of the cart on which it is to be used. It is not necessary to make the cart work nor is it necessary to make the cart work “efficiently and safely.” The cart would still fully operate as a wheelbarrow without the water bag attached and can transport, among other items, water without the subject bag. The water carrying bag is not “dedicated irrevocably” and “solely for use” with the Aerocart. The subject water carrying bag is not specifically fitted to the Aerocart and is marketed and sold separately. The water carrying bag at issue could be used with a generic wheelbarrow, placed in the back of a pick-up truck, or as a wheelbarrow simply carried by the user. More importantly, the water carrying bag does not affect the Aerocart’s operation and is merely transported by the Aerocart. Likewise, both the bag and the cart can operate independently of one another. Thus, the water carrying bag is not “part” of the cart pursuant to the court holdings in Willoughby Camera, Pompeo and Bauerhin Techs., and thus does not fall under the scope of heading 8716, HTSUS. Accordingly, it is not excluded by Note 2 to Chapter 39, HTSUS. The instant water carrying bag and anti-slip tub liner are articles of plastics within the meaning of Chapter 39, HTSUS. In particular, the bag is used to water flower beds, provide water to livestock, or help mix concrete. That the subject merchandise can be used with or without a specific wheelbarrow is not relevant to the issue of whether it falls under the scope of heading 3926, HTSUS. U.S. Customs and Border Protection (CBP) has previously classified similar articles of plastics in heading 3926, HTSUS. See Headquarters Ruling Letter (HQ) 962655, dated July 7, 2000 (plastic water bottle imported and sold within a fitted carrier bag); New York Ruling Letter (NY) B89537, dated Oct. 1, 1997 (plastic water bag); NY N015656, dated Aug. 27, 2007 (rechargeable water bag consisting of a nonwoven fabric bag filled with a cross-linked copolymer of partially neutralized acrylic designed for use as a plant watering system); NY N246252, dated Oct. 24, 2013 (molded plastic tote bag). In line with these CBP rulings, as a collapsible plastic bag that is not part of a wheelbarrow, the subject water carrying bag fits within the provision for “articles of plastics” of heading 3926, HTSUS. HOLDING: By application of GRI 1, the instant water carrying bag with a secure screw-on cap and an anti-slip tub liner is classified in heading 3926, HTSUS, specifically 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 column one, general rate of duty is 5.3% ad valorem. Duty rates are provided for 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 to mail this decision to the importer of record no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings, will make the decision 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