CLA-2 CO:R:C:G HQ 087277 WAW
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
Commercial Rulings Division