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HQ 963204




August 15, 2001

CLA-2 RR:CR:GC 963204 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9880

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Plastic Container on Braided Neck Cord; "S.S.S. Outdoor Survival Kit"--#PP173936P

Dear Ms. Wierbicki:

This is in reference to your letter of September 10, 1999, to the Customs National Commodity Specialists Division, New York, on behalf of Avon Products, Inc., in which you request a classification ruling under the Harmonized Tariff Schedule of the United States (HTSUS) of a waterproof plastic container. This matter was discussed at a meeting at Customs Headquarters on April 6, 2001, at which you indicated that your client expected to offer no further arguments than were contained in your initial letter. We regret the delay in responding.

FACTS:

You supplied a sample of the article, identified as "S.S.S. Outdoor Survival Kit"--#PP173936P, a hinged, waterproof container of molded plastic with a braided cord for wearing around the neck. The lower portion of the container measures approximately 2¾ inches tall and has a lid about 1 inches tall that rests on a lip topped with a rubber gasket that creates a watertight seal. The article is somewhat larger in dimensions than a pack of playing cards. The hinge is on the narrow side of the container. Opposite the hinge is a plastic lift lock to secure the top. A 40 inch long cord is inserted through an eyelet formed at the top of the container.

The container is imported empty. In use, it might be suitable to carry essential identification cards, driving license, credit cards, or paper money at the beach or while riding in a boat where water would otherwise pose a danger to these articles.

ISSUE:

Whether the container is an article for the conveyance or packing of goods, of plastics in heading 3923, HTSUS, or other articles of plastics in heading 3926, HTSUS.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

The following HTSUS headings are under consideration:

3923, the provision for "Articles for the conveyance or the packing of goods, of plastics; stoppers, lids, caps, and other closures, of plastics."

3926, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914."

If heading 3923, HTSUS, is inapplicable, the residual provision, heading 3926, HTSUS, other articles of plastics, would apply. Within heading 3923, subheading 3923.30.00, HTSUS, provides for “Carboys, bottles, flasks and similar articles.” In HQ 952264, issued November 25, 1992, we concluded that the bottles classified in that subheading “are bottles such as beverage bottles which are designed to be filled and sold to the ultimate consumer with a beverage therein. They are not containers to be filled by the end user.” This determination was based on our consideration of EN 39.23, which states that the heading “covers all articles of plastics commonly used for the packing or conveyance of all kinds of products.” The reference to products carries the meaning of commercial products which would not be used with the container under consideration here. If the container were used to sell any particular product, it might qualify for classification in heading 3923. However, inasmuch as it is expected to be used to hold a product of the user’s personal choice, it is precluded from classification in heading 3923. See, also, e.g., HQ 955047, issued October 6, 1994. We note that the cases you cited as precedents for classification in heading 3923, HTSUS, Headquarters Ruling Letters (HQ) 083131, issued September 13, 1989 and HQ 950779, issued April 1, 1992, were subsequently revoked by HQ 963493 and HQ 963495, respectively, both issued March 23, 2000. Those revocations contain an extensive analysis and background of Customs position.

Within heading 3926, HTSUS, the specific subheading is 3926.90.9880, the provision for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other: Other,” dutiable at the column one rate of 5.3 percent ad valorem.

HOLDING:

The "S.S.S. Outdoor Survival Kit"--#PP173936P plastic container is classifiable in subheading 3926.90.9880, HTSUS, the provision for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other: Other.”

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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