CBP Ruling H100801

HQ H100801 December 23, 2011 CLA-2 OT:RR:CTF:TCM HQ H100801 DSR CATEGORY: Classification TARIFF NO.: 3924.10.40 Mrs. Julie Kim JCC Company 330 Fifth Avenue, Suite 200 New York, NY 10001 RE: Revocation of NY D82348, dated October 9, 1998; Subheading 3924.10.40, HTSUS; Classification of plastic water bottles. Dear Mrs. Kim: This is in regard to New York Ruling Letter (NY) D82348, issued to you on October 9, 1998, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two plastic water bottles. We have reviewed NY D82348 and find it to be in error. Therefore, NY D82348 is revoked for the reasons set forth in this ruling. Notice of the proposed action was published in the Customs Bulletin, Vol. 45, No. 45, on November 2, 2011. No comments were received in response to the notice. FACTS: The subject bottles, covers and straws are made entirely of plastics and each can hold thirty-two ounces of liquid. The first bottle is a yellow bottle with a black snap-on cover and a clear plastic straw with a black cover on the tip. The printed label contains yellow, red, purple and green colors with a Coca-Cola (r) bottle logo in the center. The label exhibits the words "Always Coca-Cola". The second bottle is a white bottle with a black screw-on cover and white plastic straw with a black cover on the tip. The gold and black printed design features the face and front paws of a tiger above the word "MIZZOU". Printed below the word "MIZZOU" are large and small tiger footprints with the letter "M" on each one. In NY D82348, CBP determined that both bottles were classifiable under subheading 3924.90.5500, HTSUSA (1998), which provides for other household articles of plastics, other, other. ISSUE: Whether the subject water bottles are classifiable under subheading 3924.10, HTSUS, as tableware of plastics, or under subheading 3924.90, HTSUS, other household articles 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 2 through 6 may then be applied in order. In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The 2011 HTSUS provisions under consideration in this case are as follows: 3924 Tableware, kitchenware, other household articles and hygienic and toilet articles, plastics: * * * 3924.10 Tableware and kitchenware: * * * 3924.90 Other: * * * * Heading 3924, HTSUS, is organized in relevant part as a list of items or exemplars - tableware and kitchenware - followed by a general phrase, "other household articles." The common characteristic or unifying purpose of the exemplars is to store or contain food and beverages. See Dolly, Inc. v. United States, 27 C.I.T. 1597, 293 F. Supp. 2d 1340 (2003) (quoting SGI, Inc. v. United States, 122 F.3d 1468, 1473 (Fed. Cir. 1997) ("The exemplars listed in Heading 3924 encompass various household containers for foodstuffs."). Additionally, although the subject bottles are capable of being transported from point to point with liquids therein, the specific primary purpose of the bottles is to store or contain beverages. The bottles are thus ejusdem generis with the exemplars listed in heading 3924, HTSUS, and classifiable under that heading. As pertains to the specific subheading under which the bottles are classifiable, EN 39.24 lists exemplars of "other household articles" that fall within subheading 3924.90, HTSUS. Those exemplars are ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust-covers. It is important to note that the only listed exemplar with any connection to foodstuffs - food storage containers - is used for storage, and is not used to dispense food or beverages. By contrast, many of the exemplars of "tableware" in EN 39.24, and classifiable under subheading 3924.10, HTSUS, are items from which the consumer can directly consume beverages or food, a primary characteristic shared with the bottles that are the subject of this ruling. It should also be noted that the expression "tableware" does not solely refer to items used in the home. Subheading 3924.10, HTSUS, provides for all tableware, regardless of whether it will be used inside or outside of the household, and CBP has consistently interpreted subheading 3924.10, HTSUS, to cover such goods. See N019128, dated November 28, 2007 (plastic bottle with pop-up drinking spout); N031727, dated July 23, 2008 (plastic water bottle with spout and carrying handle); N035015, dated September 5, 2008 (plastic bottle with spout and loop handle); N047581, dated July 20, 2009 (plastic bottle with twist spout); N048029 (plastic bottle with straw, carrying handle, mouthpiece and straw). Here, the primary purpose of the subject bottle is to dispense beverages that its user can directly consume, whether in a home or elsewhere. It is not used for storage. Accordingly, we find that the subject plastic sports beverage bottle constitutes "tableware" and is properly classifiable under subheading 3924.10.40, HTSUS, as tableware of plastics, other. HOLDING: By application of GRI 1, the subject plastic water bottles are classifiable under heading 3924, HTSUS. Specifically, they are classifiable under subheading 3924.10.40, HTSUS, which provides for "Tableware, kitchenware, other household articles and hygienic and toilet articles, plastics: Tableware and kitchenware: Other." The column one, general rate of duty is 3.4% 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 at www.usitc.gov/tata/hts. EFFECT ON OTHER RULINGS: NY D82348, dated October 9, 1998, is hereby revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 4