CLA-2 OT:RR:CTF:TCM H046775 RES
Port Director
U.S. Customs and Border Protection
9915 Bryn Mawr
Rosemont, IL 60018
RE: Tariff classification of Pets International LTD pet water bottle; Application for Further Review Protest Number 3901-08-100747
Dear Port Director:
This letter is in reply to protest, and application for further review (“AFR”), number 3901-08-100747. Pets International LTD (“protestant”) protests against Customs and Border Protection’s (“CBP”) classification of protestant’s Chew Proof Water Bottle for pet use under the 2007 Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The Chew Proof Water Bottle is an article consisting of a glass bottle, a cap with a metal tube like valve, a small plastic duck, and a metal hanger bracket. It is used as a water feeding bottle for small pet animals such as gerbils and hamsters. Specifically, the glass bottle itself is approximately six inches long from the mouth to the base and two inches in diameter. The bottle is almost cylindrical with about a one inch wide flat surface running the length of the bottle so that it can lay flat against a surface such as the side of an animal cage. There is a quarter inch groove that goes around the glass bottle approximately one and a half inches from the base. The bottle holds six ounces of liquid. The dispensing valve consists of a metal tube and cap. The metal tube is approximately two inches long, one-quarter inch in diameter, and contains two small ball bearings. The tube is bent at about a forty-five degree angle as it protrudes approximately one and a half inches from where the tube is embedded into one end of a cylindrical cap. The cap is one inch long and one inch in diameter. The other end of the cap is open with a threaded plastic fitting. The open end of the cap with the plastic fitting is screwed onto the mouth of the glass bottle. Attached to the glass bottle is a bracket hanger system that allows the water bottle with the metal tube and cap to be attached to a pet cage. The bracket consists of a small wire hanger that on one end wraps around the neck of the water bottle mouth and on the other end has two hooks that are approximately at the middle of the water bottle that hook onto a pet cage. Additionally, there is a metal spring coil hanger that fits into the groove that wraps around the glass bottle. The coil has two hooks on each end, which connect to the animal cage. The hangers and hooks hold the water bottle on the cage so that the metal tube faces down, and the spring coil keeps the water bottle snug against the cage. Finally, there is a little plastic duck shaped object inside the glass bottle that floats in the water and is used to visually give the pet caretaker an idea of the water level in the bottle.
The Chew Proof Water Bottle is imported with the glass bottle, tube/cap, duck, and bracket hanger fully assembled together and packaged for retail sale. According to the invoices, the unit price of the pet water bottle is over $0.30 but not over $3.
The merchandise was initially entered on April 4, 2007, under heading 7010, HTSUS, which provides for “[C]arboys, bottles, flasks, jars, pots, vials, ampoules, and other containers, of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and other closures, of glass.” CBP liquidated the merchandise under subheading 7013.99.50, HTSUS, which applies to “[G]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes . . .”. The protestant asserts that the proper classification is under heading 8481, HTSUS, as a steel valve.
ISSUE:
Whether the subject Chew Proof Water Bottle is classified under heading 7013, HTSUS, as glassware or under heading 8481, HTSUS, as a valve?
LAW AND ANALYSIS:
Initially, CBP notes that the protest was timely filed on May 12, 2008, which is within 180 days after the date of the May 9, 2008, liquidation (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, §
2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006))). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. § 1514(a)(2).
Further Review of Protest No. 3901-08-100747 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) and (b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts, and that CBP’s classification of the water bottle is inconsistent with a previous CBP ruling. While we do find that the protest raises a question of law or fact which have not been previously ruled upon, we do not find that the protestant has alleged any inconsistent prior CBP decision.
Classification under the HTSUS is made in accordance with the General rules of Interpretation (“GRIs”). 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 GRIs 2 through 6 may then be applied in order.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The 2007 HTSUS provisions under consideration are the following:
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
8481 Taps, cocks, valves and similar appliances, for pipes, boiler shells, tanks, vats or the like, including pressure-reducing valves and thermostatically controlled valves; parts thereof:
The merchandise at issue in the instant AFR, the Chew Proof Water Bottle (“pet water bottle”), is composed of four parts: a glass bottle, a metal tube/cap (“metal valve”), a small plastic duck, and the hooks and hanger. Analyzing the pet water bottle first under GRI 1, there is no specific provision in the HTSUS that completely describes this product. Likewise, the pet water bottle is not classifiable under GRI 2(a) or 2(b) because the article is not in an unassembled or incomplete state, but is imported as a complete article and is a composite of parts which are classifiable under two or more headings. GRI 2(b) instructs that “[t]he classification of goods consisting of more than one material or substance shall be [determined] according to the principles of rule 3.”
GRI 3(a) does not apply because there is no heading that provides a specific description that clearly identifies a pet water bottle that is a composite of a glass body, metal valve, bracket hanger, and duck. Thus, the article at issue is analyzed under GRI 3(b), because it is a composite good consisting of different components each of which, if imported separately, would be classifiable under different headings. According to GRI 3(b), “mixtures, composite goods consisting of different materials or made up of different components . . . shall be classified as if they consisted of the material or component which gives them their essential character . . . .” Thus, to determine under which heading to properly classify the entire pet water bottle, we must determine which component gives the article its essential character: the glass bottle, the hooks and hanger, the duck, or the metal valve.
Although the GRI’s do not provide a definition of “essential character,” the EN (VIII) of GRI 3(b) provides guidance. According to this EN, the essential character may “. . . be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” This is known as the “essential character test” and the application of this test requires a fact-intensive analysis. Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1337 (Fed. Cir. 2007). Many factors should be considered when determining the essential character of an article, including but not limited to those factors enumerated in Explanatory Note (VIII) to GRI 3(b). Id. A summary of other analogous classification rulings and court cases are instructive in providing some of the pertinent factors to consider in analyzing the essential character of a composite article similar in structure and function to the pet water bottle at issue.
Headquarters (“HQ”) ruling H061205 (Aug. 10, 2009) involved an essential character analysis of a tea infuser set. This ruling was a straight-line analysis of the factors listed in the Explanatory Note (VIII) to GRI 3(b): (1) what component makes up the bulk of the set; (2) quantity of goods in the set; (3) weight of the components; (4) value of the components; and (5) role of the constituent material in relation to the use of the goods. This ruling also teaches that it is neither necessary for all the factors to favor one component over another in making a determination nor are all factors determinative in the analysis.
In a ruling classifying a composite article similar to the Chew Proof Water Bottle that consisted of a valve/spigot to dispense liquid and a storage container for the liquid, CBP ruled that the component which provided the essential character was the one that represented the bulk of the article and provided the storage function of the liquid. In HQ 953753 (Nov. 15, 1993), CBP ruled that a cage mounted small-pet water bottle that was a composite article of a plastic bottle and a steel valve similar to the Chew Proof Water Bottle is classified under the heading based on the material of the water bottle and not on the steel valve. Moreover, CBP stated that if the valve was imported separately from the plastic bottle, then the valve itself would be classified under heading 8481, HTSUS. The inference from this ruling is that for a pet water bottle composite article composed of a bottle component and valve component, it is the bottle component that gives the article its essential character.
In HQ 953197 (Apr. 28, 1993), CBP classified articles described as salt and pepper shakers that were a composite of a glass container with a perforated metal lid under heading 7013, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018). In accordance with the EN, CBP analyzed whether the glass gives the whole the character of a glass article and CBP concluded that it was the glass container that gave the whole shaker its character. This was based on the fact that the glass container comprised the largest portion of the shakers, weighed more than the lid, functioned as a container for the salt or pepper regardless of whether the metal lid was screwed on, and was the most distinguishing characteristic of the article. In this ruling the dispositive factors were the bulk and weight of a component, the contribution of the functionality of the individual components to the overall primary functionality of the composite article and any distinguishing design characteristics of a component.
In HQ 089258 (Dec. 23, 1991), CBP classified an article described as a potpourri jar that was composed of a glass bowl and a decorative pewter lid that sat on top of the bowl under heading 7013, HTSUS, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. CBP concluded that the essential character of the jar was imparted by the glass bowl because it provided more of the surface area than the metal lid or base and provided the marketed function and use of the jar, which was as a potpourri bowl. Additionally, CBP stated that the potpourri bowl would hold potpourri whether it had a lid and base or neither. The dispositive factors used in this classification are the same as those used in the previous ruling of the salt and pepper shaker articles.
Other cases on point are CBP’s rulings on the classification of bird feeders. For example, NY L89543 (Jan. 5, 2006), NY L80602 (Nov. 18, 2004), NY R04852 (Sept. 26, 2006), NY K87323 (July 13, 2004), and NY F87420 (May 31, 2000), are all classifications involving bird feeders that were composite articles that consisted of a glass container for holding the bird feed and some type of metal framework on or around the container. In these rulings, CBP determined that it was the glass container component that was the essential character of the articles and not the metal framework and CBP classified the bird feeders under heading 7013, HTSUS, as glassware. CBP reasoned that the primary function of the bird feeders was to hold and dispense bird feed and that it was the glass containers that provided this function and hence, provided the essential character.
From both Explanatory Note (VIII) of GRI 3(b) and these previous rulings, the pertinent factors used in analyzing which component gives a composite article the essential character include: (1) the bulk or amount each component contributes physically to the composite article; (2) weight of the components relative to the whole composite article; (3) the quantity of components; (4) value of the components; (5) role of the constituent material in relation to the use of the goods; and (6) nature of the components. Applying these factors, we can determine which component provides the essential character of the pet water bottle. As described previously, the pet water bottle is composed of a glass bottle, a metal valve/cap, a duck, and a metal bracket hanger. The function of the complete article is to store and dispense water to small pet animals. The metal bracket hanger and duck do not provide the function of storing or dispensing liquid and thus do not represent the essential character of the article. Thus, the analysis focuses on whether the glass bottle or the metal valve imparts the essential character of the pet water bottle.
(1) & (2) Bulk and Weight of the Components. Upon close examination of the physical sample provided, the glass water bottle comprises a larger part of the bulk and the weight of the composite article. Additionally, the glass bottle is the predominant part of the retail package. Thus, these factors weigh in favor of the glass bottle.
(3) Quantity of Components. This factor is not relevant in this case because each composite article for retail sale has one glass bottle paired with one metal valve.
(4) Value of the Components. There is no break down of the individual costs of each component. Thus this factor is not helpful in determining essential character.
(5) Roles of the Components. The pet water bottle performs two functions: to store and dispense water. However, we find that the primary function of the pet water bottle is the storage of liquid because the main point of having a feeding/watering system for a pet is to be able to store food or liquid that is accessible by a pet so that a caretaker does not nave to manually feed or water a pet daily. Although each component contributes separately to the two functions, the water bottle provides the sole contribution to the primary function of the composite article. The shape and custom aspects (the flat surface and groove) of the glass bottle, the use of the plastic duck as a visual liquid gauge inside the glass bottle, and the mounting use and custom fit of the bracket hanger on the glass bottle all demonstrate a greater functional contribution of the glass bottle to the primary storage function of the composite article. Without the metal valve, the glass bottle can still store water and, albeit inefficiently, dispense water. However, the reverse is not true with the metal valve. On its own without the glass bottle (or any bottle) the metal valve can neither dispense nor store a liquid without a bottle supplying the liquid.
As noted previously, the glass bottle comprises the bulk of the composite article and when looking at the sample as it is packaged for retail, the glass bottle is the predominant part of the package. Even the retail name of the article “Chew Proof Water Bottle” gives a reasonable impression that the primary function of the article is a “water bottle” and not a metal valve. The name of a composite article can be persuasive indicia of essential character. Home Depot U.S.A., Inc. v. United States, 30 C.I.T. 446, 461 (C.I.T 2007). The “chew proof” part of the name does not give any indication that this is referring to a metal valve. Even the tagline below the product name, “The Ultimate Chew Resistant Bottle,” puts an emphasis on “bottle.” It is a reasonable assumption that a customer would perceive that the article is a glass bottle with a metal valve and not a metal valve with a glass bottle. Thus, this factor weighs in favor of the glass bottle.
(6) Nature of the Components. Another factor in favor of the water bottle is that it is custom made and not simply a generic glass bottle. The bottle is designed with a flat surface so that it sits flush against a pet cage and has a groove that goes around the glass water so that the coil spring hanger fits snugly into the groove to better hold the bottle against a pet cage. These custom design aspects demonstrate an emphasis on the storage functionality of the glass bottle. As to whether the metal tube is custom made as well because of its shape and the ball bearings inside the tube, these features are what give the metal tube its basic functionality as a valve and are not additional design features that emphasize anything beyond its own basic functionality. Thus, because these additional features designed into the water bottle distinguish it as something else other than a generic glass bottle, this is a factor that weighs in favor of the glass bottle.
In summary, the glass bottle component comprises the bulk and weight of the article, is the predominant feature of the retail package, has additional customized design features beyond its storage functionality, is the component that provides the primary function of the composite article, and could be reasonably perceived by a customer to perform the primary function of the article of storing water. Upon consideration of the totality of these factors in favor of the glass bottle, CBP finds that the essential character of the Chew Proof Water Bottle is imparted by its glass bottle.
Therefore, the pet water bottle is classified under heading 7013, HTSUS, specifically subheading 7013.99.50, HTSUS, as “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): other glassware: other: other: other: valued over $0.30 but not over $3 each.”
HOLDING:
By application of GRI 3(b), the Chew Proof Water Bottle is classified under heading 7013, HTSUS, and specifically, subheading 7013.99.5000, HTSUSA, as “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): other glassware: other: other: other: valued over $0.30 but not over $3 each.” Articles classified under this subheading are subject to a general rate of duty of 30 percent ad valorem.
Since the classification indicated above is the same provision as the classification under which the entry was liquidated, you are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the Bureau of Customs and Border Protection 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
Commercial and Trade Facilitation Division