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HQ 087277


October 9, 1990

CLA-2 CO:R:C:G HQ 087277 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 3925.90.0000

Ms. Barbara Matarese
Acting Chief, CIE
6 World Trade Center
Room 437
New York, N.Y. 10048

RE: Difference in classification of plastic tissue dispensers; Toilet articles of plastics; Builders' ware of plastics; Toilet tissue dispensers

Dear Ms. Matarese:

This letter is in response to your request for resolution of a difference of opinion concerning the tariff classification of plastic tissue dispensers between the Import Specialist in Blaine, Washington and the National Import Specialist in New York.

FACTS:

The merchandise the subject of this memorandum is described as a 14 inch smoke plastic tissue dispenser. The dispenser is big enough to hold a large diameter commercial roll of toilet tissue, and is designed to be permanently installed in non- domestic buildings. The importer of this merchandise is Wisconsin Tissue. The manufacturer of the merchandise is Merfin Plastics Limited, Canada.

The Import Specialist in Blaine, Washington maintains that the tissue holder should be classified in subheading 3924.90.5000, HTSUSA. In support of his position, he states that the Explanatory Notes to Heading 6912, HTSUSA, apply, mutatis mutandis, to Heading 3924, HTSUSA. The Import Specialist also argues that Explanatory Note (D) to Heading 6912, HTSUSA, states that included within that subheading are "toilet articles (whether for domestic or non-domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails. . . toilet paper holders. . . and similar articles for bathrooms, toilets or kitchens, whether or not designed for fixing to or setting in the wall." In addition, he argues that Note 11 to Chapter 39 states that "Heading No. 39.25 applies only to the following articles, not being products covered by any of the earlier headings of sub- Chapter II." Thus, the Import Specialist maintains that since the toilet paper holder is a toilet paper dispenser of plastic designed to be permanently installed in non-domestic buildings, it is an article covered by Heading 3924, HTSUSA, and since Heading 3924, HTSUSA, is an earlier heading of sub-chapter II, classification is proper in Heading 3924, HTSUSA.

The National Import Specialist (NIS) in New York, however, believes that the tissue holder is more properly classified under subheading 3925.90.0000, HTSUSA. In support of her position, the NIS argues that the Harmonized System Committee in Brussels has unanimously agreed that Heading 3924, HTSUSA, does not include articles such as towel rails, towel hooks and similar articles, designed for fixing to or setting in the wall (for permanent installation), despite the fact that such articles would be classifiable in both Headings 6911,and 6912, HTSUSA, and despite the fact that the Explanatory Notes state that the notes to Headings 6911 and 6912, HTSUSA, apply, mutatis mutandi, to Heading 3924, HTSUSA. The NIS believes that if the tissue dispenser is intended to be permanently installed, then it should be classified as builders' ware in subheading 3925.90.0000, HTSUSA.

ISSUE:

Whether the sample plastic tissue dispenser is classifiable under subheading 3924.90.5000, HTSUSA, as tableware, kitchenware, other household articles and toilet articles, of plastics, or rather under subheading 3925.90.0000, HTSUSA, as builders' ware of plastics, not elsewhere specified or included.

LAW AND ANALYSIS:

In view of the recommendations made by the Secretariat of the Customs Cooperation Council in Brussels (hereinafter CCC) the Harmonized System Committee, it is the position of this office that the sample plastic toilet paper dispenser which is designed for permanent installation, should be classified as a builders' ware of plastics, not elsewhere specified or included, in subheading 3925.90.0000, HTSUSA.

The issue of whether certain toilet articles are classifiable in Heading 3924, HTSUSA, or in Heading 3925, HTSUSA, was covered during the Third Session of the Harmonized System Committee, which was conducted in Brussels on March 9, 1989. What follows is an overview of the comments issued by the European Economic Community and the Secretariat regarding this classification matter.

Proposals by the EEC

In correspondence issued by the Customs Cooperation Council, dated March 9, 1989, concerning an amendment of Note 11 (ij) to Chapter 39, the European Economic Community (EEC) noted a contradiction between Explanatory Note 11 to Chapter 39 and subparagraph (ij) to that Note. Subparagraph (ij) of Note 11 to Chapter 39 directs that fittings and mountings intended for permanent installation in or on doors, windows, staircases, walls or other parts of buildings, for example, knobs, handles, hooks, brackets, towel rails, switch-plates and other protective plates, be classified in Heading 3925, HTSUSA. Thus, based on the foregoing Explanatory Note, it would appear that towel rails, toilet paper holders and similar articles would be classified in Heading 3925, HTSUSA.

However, Explanatory Note 11 indicates that only those products which are listed in subparagraphs (a) to (ij) are classifiable in Heading 3925, HTSUSA, provided that they are not covered by any of the earlier headings of sub-Chapter II of Chapter 39. (Sub-Chapter II of Chapter 39 covers heading numbers 3915 to 3926, HTSUSA). Heading 3924, HTSUSA, covers tableware, kitchenware, other household articles and toilet articles, of plastics. The Explanatory Notes to Heading 3924, HTSUSA, state that Headings 6911 and 6912, HTSUSA apply, mutatis mutandis, to this heading. Explanatory Note (D) to Heading 6912, HTSUSA, includes ceramic toilet articles such as towel rails, tooth-brush holders, toilet paper holders and similar articles, whether or not designed for fixing to or setting in the wall. Thus, based on the foregoing Explanatory Note, it would appear that towel rails, toilet paper holders and similar articles of plastics, even for permanent installation, would be classified in Heading 3924, HTSUSA.

In order to rectify this apparent contradiction in the Explanatory Notes, the EEC has suggested amending Note 11 (ij) to Chapter 39 by deleting the reference to "towel rails" and its equivalent in the French version of that Note. In addition, the EEC has stated that if it is the intention of the Committee to have these products classified in Heading 3925, HTSUSA, the Committee should have taken the requisite measures to provide for such a classification.

Secretariat Comments

The Secretariat disagrees with the EEC's comment that an apparent contradiction exists between the introductory phrase of Note 11 to Chapter 39 and Item (ij) of that Note. He states that those articles covered by Item (ij) of the Note are intended for permanent installation in or on doors, windows, etc. Thus, these articles are classified in Heading 3925, HTSUSA, provided that they are not covered in an earlier heading of sub-Chapter II. Furthermore, the Secretariat argues that based on the examples given in the Explanatory Notes, it is clear that Heading 3924, HTSUSA, covers only articles which are portable in nature and not designed for permanent installation.

In addition, in the Secretariat's view, the coverage of the expression "household articles and toilet articles" as used in Headings 69.11 and 69.12 is wider than the same expression used in Heading 3924, HTSUSA. Therefore, according to the Secretariat, certain articles included in Item (D) of the Explanatory Notes to Heading 6912 such as toilet paper holders, would fall in Heading 3924, HTSUSA, as long as they are not designed for fixing to or setting in the wall.

Furthermore, the Secretariat has noted that there is also an apparent contradiction between the Explanatory Notes to Heading 3922, HTSUSA, and Explanatory Note 11 (ij) to Chapter 39. In the Explanatory Notes to Heading 3922, HTSUSA, there is a general exclusion reference for "towel rails." The Explanatory Note states that Heading 3922, HTSUSA, excludes soap dishes, towel rails, bed pans, chamber pots and other household or toilet articles, and directs these articles to Heading 3924, HTSUSA. This provision runs contrary to Explanatory Note 11 (ij) to Chapter 39 which directs classification of "towel rails" to Heading 3925, HTSUSA.

To eliminate any confusion in the classification of these articles, the Secretariat has suggested that the Committee delete the mutatis mutandis reference in the heading and redraft the Explanatory Notes so as to clearly define the scope of the heading. In the Secretariat's opinion, if the Committee adopts his position and confirms the classification in Heading 3925, HTSUSA, of paper towel holders, designed for permanent installation, the Committee would not need to amend Note 11 (ij) to Chapter 39.

Amendments to Explanatory Note 39.24 and 39.25

Subsequent correspondence issued by the CCC, during the Fourth Session of the Harmonized System Committee, dated July 31, 1989, is entitled "Amendments to the Explanatory Notes to Clarify the Scope of Headings 39.22, 39.24, and 39.25." At this session, the Committee discussed, among other things, the classification of towel rails, tooth-brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets and kitchens, designed for fixing to or setting in the wall (permanent installation), taking into account the EEC proposals and the comments and suggestions set forth by the Secretariat.

The Committee unanimously agreed with the Secretariat's position that Heading 3924, HTSUSA, (covering tableware, kitchenware, other household articles and toilet articles, of plastics) did not include articles such as plastic tissue dispensers, which are designed for permanently fixing to or setting in the wall. Consequently, the Committee decided that the instant merchandise should be classified in Heading 3925, HTSUSA, as builders' ware.

In an effort to clarify the Explanatory Notes concerning the instant merchandise, the Committee decided to delete the exclusion reference for "towel rails" on page 573, in the last paragraph of the Explanatory Note to Heading 3922, HTSUSA. Moreover, the Committee requested the Secretariat to redraft the Explanatory Note to Heading 3922, HTSUSA, in accordance with the decision of the Committee concerning the scope of Heading 3924, HTSUSA. The Committee also instructed the Secretariat to prepare draft amendments to the relevant Explanatory Notes based on the proposals made by the EEC and comments expressed during the examination of this matter.

HOLDING:

Based on the foregoing recommendations set forth by both the Committee and the Secretariat, it is the position of the Customs Service that the instant plastic toilet paper holders which are designed for permanent installation, should be classified in subheading 3925.90.0000, HTSUSA, which provides for builders' ware of plastics, not elsewhere specified or included, and are subject to a rate of duty of 5.3 percent ad valorem. Moreover, articles classified under this subheading, which have originated in the territory of Canada, are entitled to a 4.2 percent rate of duty under the United States-Canada Free Trade Agreement (FTA) upon compliance with all applicable regulations.

Sincerely,

John Durant, Director

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