Reconsideration of New York Ruling N075762, dated October 7, 2009; classification of a plastic sports bottle carrier from China.

HQ H106778 January 4, 2012 CLA-2 OT: RR: CTF: TCM H106778 RES CATEGORY: Classification TARIFF NO.: 4202.99.90 Peter Sullivan Metalogik, Ltd. 77 Banks road, Linthwaite Huddersfield, UK HD& 5LP RE: Reconsideration of New York Ruling N075762, dated October 7, 2009; classification of a plastic sports bottle carrier from China. Dear Mr. Sullivan: This is in response to your letter dated February 1, 2010, for reconsideration of New York Ruling Letter (“NY”) N075762 issued on October 7, 2009. In NY N075762, U.S. Customs and Border Protection (“CBP”) classified a plastic sports bottle carrier (“the carrier”) under heading 4202, Harmonized Tariff Schedule of the United States (“HTSUS”). CBP has determined that NY N075762 is correct. FACTS: The following facts were set forth in NY N075762: The item you refer to as the “Sports Bottle Carrier” is constructed of injected molded polypropylene (PP) with a molded nylon handle. The carrier is designed to provide storage, protection, portability, and organization to water or beverage bottles. It is fitted to hold eight bottles. It measures approximately 14.5” (L) x 9” (W) x 3.5” (D). In that ruling, we classified the plastic sports bottle carrier as a container under subheading 4202.99.90, HTSUS. You filed a request for reconsideration of NY N075762 on April 21, 2010, arguing that the proper classification of the carriers at issue is as articles of plastic under Chapter 39, HTSUS. ISSUE: Whether the subject merchandise is classified under heading 3924, HTSUS, as a household article of plastic, or under heading 3926, HTSUS, as other articles of plastics, or under heading 4202, HTSUS, as a container for organizing, sorting, protecting, and carrying bottles under the principles of ejusdem generis? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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 2 through 6 may be applied in order. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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 headings under consideration in this case are as follows: 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: 4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: Chapter Note 2(m) of Chapter 39, HTSUS, provides that Chapter 39 does not cover "Saddlery or harness (heading 4201) or trunks, suitcases, handbags or other containers of heading 4202." The ENs to heading 4202 state, in pertinent part, the following: This heading covers only the articles specifically named therein and similar containers. These containers may be rigid or with a rigid foundation, or soft and without foundation. Subject to Notes 1 and 2 to this Chapter, the articles covered by the first part of the heading may be of any material. The expression “ similar containers ” in the first part includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc. The articles covered by the second part of the heading must, however, be only of the materials specified therein or must be wholly or mainly covered with such materials or with paper (the foundation may be of wood, metal, etc.).  For this purpose the expression “of leather or of composition leather” includes, inter alia, patent leather, patent laminated leather and metallised leather.  The expression “ similar containers ” in this second part includes notecases, writingcases, pencases, ticketcases, needlecases, keycases, cigarcases, pipecases, tool and jewellery rolls, shoecases, brushcases, etc. * * * * * Articles enumerated as exemplars in heading 4202, HTSUS, are various containers that have the essential characteristics and purpose of organizing, storing, protecting, and carrying various items. Totes, Incorporated v. United States, 18 C.I.T. 919, 924-25 (Ct. Int’l Trade 1994), aff’d 69 F.3d 495 (Fed. Cir. 1995). In Totes, the court explained the principle of ejusdem generis in relation to heading 4202, HTSUS, as follows: Under the rule of ejusdem generis, which means “of the same kind,” where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified. As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine [by name] in order to be classified under the general terms. Totes, Incorporated v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995) (quoting Sports Graphics, Inc., v. United States, 24 F.3d 1390, 1392 (Fed. Cir. 1994)). CBP has classified various articles under heading 4202, HTSUS as “similar containers” under the principles of ejusdem generis. See HQ H045866, dated May 29, 2009 (plastic game cartridge); HQ W968427, dated October 19, 2006 (insulated bag used to store and carry three wine bottles); HQ 966830, dated April 26, 2004 (tool bucket); HQ 966503, dated October 1, 2003 (plastic pet carrier); HQ 965266, dated February 8, 2002 (plastic contact lens case); HQ 964234, dated April 23, 2001 (lunch tote). Since the bottle carriers at issue are composed of plastic, a material not listed in the second part of the heading, the issue is whether the instant merchandise is a “similar container” to those items listed in the first part of the heading. (See EN 42.02.) The principal function of the sports bottle carrier at issue here is to hold eight water bottles (or bottles of any liquid) that can be transported from, for example, a cooler or other place of storage to another location such as an athletic field, a city park, a person’s backyard, etc. The sports bottle carrier is, when in use, serving the purpose of: organizing by consolidating and arranging bottles in two rows of four individual slots; storing by assembling bottles into a common container; protecting by assembling the bottles in their own slot surrounded by hard plastic in the base of the container to prevent them from being crushed or damaged from other objects; and carrying by securing the bottles in individual slots in a single container to transport them. Accordingly, the sports bottle carrier possesses the essential characteristics and purposes of the exemplars in heading 4202. See Totes, at 498. Thus, the sports bottle carrier is a “similar container” constructed of a material (plastic) that falls within the class or kind of articles listed in heading 4202. (See EN to heading 4202 (stating that articles falling under the first part of heading 4202 may be composed of any material)). Therefore, the sports bottle carrier is properly classifiable under heading 4202. See HQ W968427, dated October 19, 2006 (classifying an insulated bag made of rubber used to store and carry three wine bottles in heading 4202, HTSUS); HQ 966830, dated April 26, 2004 (classifying a polyester and plastic tool holder in heading 4202, HTSUS); HQ 966503, dated October 1, 2003 (classifying a plastic pet carrier in heading 4202, HTSUS). You assert that the sports bottle carrier is classifiable under Chapter 39, HTSUS, but do not make any specific claim as to which particular subheading the carriers would be classified under. You allude to another company’s plastic sports bottle carrier that was allegedly classified under heading 3924, HTSUS, as a household article of plastic. You did not provide any specific information on this company or its merchandise, and thus this example is not probative because there is no way to compare the merchandise at issue here with this other company’s article. You also claim that a sports bottle carrier was classified in the United Kingdom under heading 3926, of the UK Trade Tariff, the provision for “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914.” Regardless, the classification of the sports bottle carrier in the UK is not relevant to the classification of the same merchandise in the United States. Furthermore, The EN to heading 3926, HTSUS, indicates that this heading is a basket provision for plastic articles not described more specifically elsewhere in the HTSUS. However, through the application of ejusdem generis, the sports bottle carrier is specifically provided for under heading 4202, HTSUS. Finally, Chapter Note 2(m) of Chapter 39, HTSUS, excludes articles classified in heading 4202 from classification in Chapter 39. In summary, the sports bottle carrier is a container specifically provided for as “similar containers” by operation of ejusdem generis in heading 4202, HTSUS, and consequently, pursuant to Chapter Note 2(m) of Chapter 39, the carrier is excluded from the provisions claimed by you in Chapter 39. Therefore, upon reconsideration CBP has determined that the classification in NY N075762 of the plastic sports bottle carrier in heading 4202, HTSUS, is correct. The plastic sports bottle carrier is classified under subheading 4202.99.90, HTSUS, as “Trunks, suitcases, vanity cases, attaché cases . . . and similar containers; . . . [o]ther: [o]ther: [o]ther.” HOLDING: Pursuant to GRI 1, the plastic sports bottle carrier is classified under subheading 4202.99.90, HTSUS, which provides for “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper: [o]ther: [o]ther: [o]ther.” The 2011 column one, general rate of duty is 20 percent, 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 on the World Wide Web at www.usitc.gov/tata/hts/. EFFECTS ON OTHER RULINGS: NY N075762, dated October 7, 2009, is AFFIRMED. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division