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HQ 967002




February 18, 2005

CLA-2 RR:CR:GC 967002 RSD

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.9880

Port Director
330 2nd Avenue South
Suite 560
Minneapolis, MN 55401

RE: Protest 3501-03-100055; Plastic sports water bottle

Dear Port Director:

This is our decision on Protest 3501-03-100055, filed by Proguard Sports Inc., against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a sports water bottle. The entries under protest were liquidated on October 23, 2003, under subheading 3926.90.98, HTSUS, and this protest was timely filed on December 5, 2003.

FACTS:

The merchandise at issue is a 1000 milliliter (45 ounce) sports water bottle. The bottle is made of plastics, has a wide neck to accommodate ice, and a screw top cap with pop-top dispenser. It is designed to fit into a 6-pack metal bottle carrier for transport and use by a sports team.

Protestant claims classification of the sports water bottle under subheading 3923.30.00, HTSUS, which provides for “Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Carboys, bottles, flasks and similar articles.”

ISSUE:

Whether the sports water bottle is an article for the conveyance or packing of goods under heading 3923, HTSUS, or an article of plastic under heading 3926, HTSUS?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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.

The HTSUS provisions under consideration are as follows:

Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics:

Carboys, bottles, flasks and similar articles

Other articles of plastics and articles of other materials of headings 3901 to 3914:

Other:

3926.90.98 Other

We note initially that if heading 3923, HTSUS, is inapplicable, the residual heading, 3926, HTSUS, which provides for other articles of plastics, will apply.

EN 39.23 states, in pertinent part:

This heading covers all articles of plastics commonly used for the conveyance of all kinds of products.

EN 39.26 states, in pertinent part:

This heading covers articles, not elsewhere specified or included, of plastics In HQ 952264, dated November 25, 1992, CBP addressed EN 39.23 as relates to subheading 3923.30.00, HTSUS. In that ruling, CBP distinguished the plastic sports bottles at issue therein from the ENs description of plastics commonly used for the conveyance of all kinds of products, holding that heading 3923, HTSUS, pertained only to products for the conveyance of commercial goods, but not personal items, i.e., containers for packing and shipping bulk and commercial goods. Therefore, subheading 3923.30.00, HTSUS, would apply only to bottles, such as beverage bottles, that are designed to be filled and sold to the ultimate consumer with a beverage therein, but not containers that will be filled by the end user. As such, the plastic sports bottles at issue therein, which were not designed to be filled prior to sale, could not be classified under subheading 3923.30.00, HTSUS. CBP has repeatedly adhered to this standard as set forth in HQ 952264. See HQ 963204, dated August 15, 2001, HQ 961434, dated March 19, 1999, HQ 960373, dated February 8, 1999, HQ 955407, dated October 6, 1994, and HQ 954072, dated September 2, 1993.

Similarly, the sports water bottles at issue are neither designed to hold or contain a beverage when sold to the ultimate consumer. The fact that they are not designed for individual use, and may be used by a sports team, is not determinative for purposes of classification. As a result, they are classified in the residual heading for other articles of plastics, specifically, subheading 3926.90.98, HTSUS, wherein CBP has repeatedly classified similar products. See NY K82067, dated January 14, 2004, NY J85490, dated June 19, 2003, HQ 962403, dated January 17, 2001, HQ 962655, dated July 7, 2000, and HQ 960373, dated February 8, 1999. The Protestant has cited to three NY ruling letters, NY 897965, dated June 10, 1994, NY 880582, dated November 30, 1992, and NY 867193, dated October 17, 1991, wherein CBP classified plastic water bottles similar to the merchandise at issue under subheading 3923.30.00, HTSUS. However, we note that the classification used by CBP in those rulings is inconsistent with the classification contained in the numerous other rulings cited above on substantially similar merchandise, as previously discussed. As such, CBP now intends to reexamine the legal analysis as set forth in those ruling letters, and take such actions as is appropriate.

HOLDING:

The sports water bottles are classified under subheading 3926.90.9880, Harmonized Tariff Schedule of the United States Annotated, as “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other.” The 2003 column one rate of duty is 5.3 percent ad valorem.

Duty rates are provided for the Protestant’s convenience and are 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.

You are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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