The tariff classification of a polystyrene container from Brazil

N260499 January 30, 2015 CLA-2-39:OT:RR:NC:N4:421 CATEGORY: Classification TARIFF NO.: 3923.90.0080 Ms. Leone Kirkpatrick Dart Container Corporation 2500 Holcomb Road Hillsdale, MI 49242 RE: The tariff classification of a polystyrene container from Brazil Dear Ms. Kirkpatrick: In your letter, dated November 14, 2014, you requested a binding ruling. The request was returned to you for additional information, which was resubmitted to this office on December 31, 2014. Samples and product information were submitted for our review. The classification was requested on a 240ml polystyrene foam container, item number 240J20. You state that the bowl-shaped containers are imported empty and without lids. You indicate that the containers are sold to distributors for resale. The containers are used in restaurants, hospitals, ice cream shops, etc., and the end use will be determined by the ultimate consumer. You do suggest that the containers will likely be utilized for food in the majority of instances. You argue that the containers, whether imported with or without lids, are classifiable under subheading 3924.10.2000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy boats, serving dishes and platters. We disagree. The containers are purchased by distributors and sold to establishments empty and are used by those customers to convey foodstuffs to the ultimate individual consumer. Furthermore, the Explanatory Notes to heading 3923, HTSUS, explain that: This heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include:   (a)   Containers such as boxes, cases, crates, sacks and bags (including cones and refuse sacks), casks, cans, carboys, bottles and flasks.   The heading also covers :   (i)   Cups without handles having the character of containers used for the packing or conveyance of certain foodstuffs, whether or not they have a secondary use as tableware or toilet articles; (emphasis added) The instant containers are used for the packing and conveyance of foodstuffs and do not have a primary use as tableware, kitchenware, or other household items. The containers are not purchased by the consumer at retail to be used as such. The applicable subheading for polystyrene foam containers will be 3923.90.0080, HTSUS, which provides for Articles for the conveyance or packing of goods, of plastics: Other: Other. The rate of duty will be 3 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Laurel Duvall at laurel.duvall@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division