CLA-2 OT:RR:CTF:TCM HQ H176516 TNA
Mr. Conor O’Malley
Oak Ridge Products, Inc. 211 Berg Street
Algonquin, IL 60102
RE: Revocation of NY H81035; Classification of one ounce plastic cups from Hong Kong
Dear Mr. O’Malley:
This letter is in reference to New York Ruling Letter (“NY”) H81035, issued to Oak Ridge Products, Inc. on June 8, 2001, concerning the tariff classification of one ounce plastic cups from Hong Kong. There, U.S. Customs and Border Protection (“CBP”) classified the merchandise under subheading 3924.10.50, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Tableware, kitchenware, other household articles…of plastics: tableware and kitchenware: other.” We have reviewed NY H81035 and found it to be in error. For the reasons set forth below, we hereby revoke NY H81035.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY H81035 was published in the Customs Bulletin, Vol. 46, No. 28, on July 5, 2012. No comments were received in response to this notice.
FACTS:
The subject merchandise consists of one-ounce plastic cups made entirely of polypropylene. The cups are graduated in shape and have markings on the side of the cup that denote various measurements, such as ounces, teaspoons, drams, centimeters and millimeters.
The subject cups are sold wholesale to school systems, food distributors, retirement homes and hospital groups. The importer claims that the cups are primarily used to administer oral medication in these settings. A sample of the subject merchandise has been received and examined by this office.
ISSUE:
Whether graduated one ounce plastic cups are classified in heading 3924, HTSUS, as other kitchenware, or in heading 3926, HTSUS, as other articles of plastic?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 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 GRI may then be applied.
The HTSUS provisions under consideration 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:
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 3924, HTSUS, provides, in pertinent part:
This heading covers the following articles of plastics:
Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee pots, teapots, sugar bowls, beer mugs, cups, sauce boats, fruit bowls, cruets, salt cellars, mustard pots, egg cups, teapot stands, table mats, knife rests, serviette rings, knives, forks and spoons.
Kitchenware such as basins, jelly moulds, kitchen jugs, storage jars, bins and boxes (tea caddies, bread bins, etc.), funnels, ladles, kitchen type capacity measures and rolling pins.
Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).
Hygienic and toilet articles (whether for domestic or non domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber pots, spittoons, douche cans, eye baths; teats for baby bottles (nursing nipples) and finger-stalls; soap dishes, towel rails, tooth brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls. However, such articles intended for permanent installation in or on walls or other parts of buildings (e.g., by screws, nails, bolts or adhesives) are excluded (heading 39.25).
The heading also covers cups (without handles) for table or toilet use, not having the character of containers for the packing or conveyance of goods, whether or not sometimes used for such purposes. It excludes, however, cups without handles having the character of containers used for the packing or conveyance of goods (heading 39.23).
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.
NY H81035 classified the subject plastic cups in heading 3924, HTSUS, as other plastic tableware and kitchenware. In HQ W968181, dated October 3, 2006, CBP examined the scope of heading 3924, HTSUS. There, we noted that the heading provides for, inter alia, other household articles of plastics. Furthermore, we noted that the heading covers tableware, kitchenware, and other household articles “such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipcovers).” See HQ W968181, citing EN 39.24. HQ W968181 then cited Nissho-Iwai American Corp. v. United States, where the Court of International Trade (“CIT”) stated that the canon of construction ejusdem generis, which means “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” See HQ W968181, citing Nissho-Iwai American Corp. v. United States, 10 CIT 154, 156 (1986). The court continued by stating that “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 in order to be classified under the general terms.” Id. at 157. See also Totes, Inc. v. United States, 18 CIT 919, 865 F. Supp. 867, 871 (1994), aff’d. 69 F. 3d 495 (Fed. Cir. 1995). In HQ W968181, we then stated that the essential characteristics or purposes of the above-listed exemplars are that they are of plastic, are used in the household, and are reusable. See HQ W968181, page 4.
In NY H81035, after noting the physical characteristics of the subject merchandise, we stated that “the cups are considered kitchenware. Kitchenware is not restricted to the home.” Upon reconsideration, we believe that NY H81035 is incorrect because we no longer believe that that the subject plastic cups are only used in the house. Thus, we examine whether the subject cups can be classified, ejusdem generis, in heading 3924, HTSUS, as “other household articles and hygienic or toilet articles.”
The subject cups are sold by Oak Ridge Products, a manufacturer and wholesaler of disposable plastic products primarily for medical industry. See http://www.oakridgeproducts.com/AboutUs.aspx. After examining the sample of the subject merchandise, we note that they are too flimsy to be reused. Furthermore, the chain of supply suggests that the subject cups are primarily used to administer oral medication, and their graduated design, with measurement markings on the side, is the type of plastic cups that are sold with medicine bottles. Lastly, the subject cups are sold to retirement homes, hospital groups, school systems and food service distributors. The instant merchandise is not sold to individuals for household use or to retailers that serve the household market. As a result, we find that the subject plastic cups do not meet the exemplars of heading 3924, HTSUS, and must be classified elsewhere.
Inasmuch as the instant merchandise is not described by the terms of heading 3924, HTSUS, the subject plastic cups are described by the terms of heading 3926, HTSUS, as articles of plastic not elsewhere specified or included. As a result, we find that they are classified in heading 3926, HTSUS. This decision is consistent with prior CBP rulings. See NY N043950, dated November 26, 2008 (classifying one-ounce medicine cup of polypropylene plastic with incremental measurements shown on the side, used in administering medicine, in subheading 3926.90.99, HTSUS); NY 815693, dated November 7, 1995 (classifying a one-ounce plastic medicine cup with incremented measurements on the side of the cup in ounces, drams, cc’s and ml’s that was used in hospitals and doctors' offices in subheading 3926.90.98, HTSUS.)
HOLDING:
Under the authority of GRI 1, the subject one ounce plastic cups are classified in heading 3926, HTSUS, and 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 2012 column one general rate of duty is 5.3% 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 the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY H81035, dated June 8, 2001, is 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