OT:RR:CTF:CPMM H303684 CKG
Ms. Maryann Larkin Globe Express Services 1550 E. Glenn Curtiss Street Carson, CA 90746
RE: Revocation of NY N297758, NY N297169, NY N254461 and NY N264760; classification of insulated stainless steel beverage containers
Dear Ms. Larkin:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York (“NY”) Ruling Letters NY N297758 and NY N297169, issued to you on July 9, 2018, and June 15, 2018, concerning the classification of insulated stainless steel beverage containers. After reviewing the aforementioned rulings, we believe that they are in error. We have also reconsidered NY N254461, dated September 10, 2014, and NY N264760, dated June 16, 2015. For the reasons set forth below, we hereby revoke NY N297758, NY N297169, NY N254461 and NY N264760.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as
amended by section 623 of Title VI, notice proposing to revoke NY N297758, NY N297169, NY
N254461 and NY N264760 was published on March 10, 2021, in Volume 55, Number 9, of the
Customs Bulletin. Four comments were received in opposition to this Notice and are addressed below.
FACTS:
The merchandise at issue in NY N297758 was described as follows:
[F]our, 12 oz. tumblers. The tumblers are beverage containers that are designed to carry hot or cold beverages. They feature bodies with a wider, rounded bottom that taper to a smaller top opening. The tumblers are made of double-walled stainless steel with a partial vacuum between the walls to serve as a barrier preventing heat transfer. Each item has a flat bottom that enables it to be placed on a flat surface such as a table. None of the items has a protective outer casing. Each item has a plastic lid designed to seal the container and keep the liquids inside from spilling. These items will be imported under item numbers 01976, 01987, 01988 and 10041. Item number 01976 is an assortment of four colors. Item number 10041 is an assortment of three colors. Item numbers 01987 and 01988 are only one color per item number. All items are identical except for color.
The merchandise at issue in NY N297169 was described as follows:
[F]ive, 40 oz. bottles. The bottles are beverage containers designed to hold cold or hot beverages. They feature cylindrical bodies made of double-walled stainless steel with a partial vacuum between the walls to serve as a barrier preventing heat transfer. Each item has a flat bottom that enables it to be placed on a flat surface such as a table. None of the items has a protective outer casing. Each item has a lid designed to seal the container and keep the liquids inside from spilling. The lid also equipped with a carabiner top that makes it easy to hook on or carry. These items will be imported under item numbers 01840, 01841, 01842, 01843 and 01844. All items are identical except for color.
The merchandise at issue in NY N254461 was described as follows:
Each of the samples were identified as the CamelBak Forge 16 oz. Black Smoke, Style Number 57002. It consists of a black cylindrical stainless steel beverage bottle with a black, plastic screw-on lid. There is a lever on the side of the lid that, when depressed, exposes a sipping aperture on the top of the lid. The side of the lid is embossed with the raised letters “Camelbak.” The bottom of the base of the item has the depressed letters “Camelbak Forge”. The sample measures approximately 8½” in height, including the lid, 7¼” in height, not including the lid and 2¾” in diameter.
The bottle is a double walled container with a space separating the walls that provides a partial vacuum to serve as an insulating barrier to heat transfer. However, there is no protective outer casing around the double walled construction.
At issue in NY N264760 were five items, described as follows:
The five submitted illustrations depict items that are described as beverage containers that are designed to carry hot or cold beverages. They feature bodies made of double-walled stainless steel with a partial vacuum between the layers and each item has a flat bottom that enables it to be placed on a flat surface such as a table. None of the items have a protective outer casing. Each item has a plastic lid with features designed to seal the container and keep the liquids inside from spilling. The items are further described as follows: Autoseal Westloop Stainless Travel Mug – This item is imported in 16, 20, and 24 ounce capacity sizes. Extreme Stainless Travel Mug – This item holds 16 fluid ounces of liquid, incorporates a carry-handle that is attached to one side of the body and features a band of rubber around the middle to serve as a grip. Snapseal Byron Stainless Travel Mug – This item is imported in 16 and 20 ounce capacity sizes. It has a band of rubber around the middle which serves as a grip. Astor Stainless Travel Mug – This item holds 16 fluid ounces of liquid. Autoseal Scout Kids Stainless Bottle – This item holds 12 fluid ounces of liquid.
ISSUE:
Whether the instant stainless steel beverage containers are classified as table, kitchen, or other household articles of steel in heading 7323, HTSUS, or as vacuum vessels of heading 9617, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS, in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
9617: Vacuum flasks and other vacuum vessels, complete with cases; parts thereof
other than glass inners
7323: Table, kitchen or other household articles and parts thereof, of iron or steel; iron
or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel:
Note 1(m) to Section XV provides as follows:
(m) Hand sieves, buttons, pens, pencil-holders, pen nibs, monopods, bipods,
tripods and similar articles or other articles of chapter 96 (miscellaneous manufactured articles);
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 9617 provides as follows:
This heading covers : (1) Vacuum flasks and other similar vacuum vessels, provided they are complete with the cases. This group includes vacuum jars, jugs, carafes, etc., designed to keep liquids, food or other products at fairly constant temperature, for reasonable periods of time. These articles consist of a double-walled receptacle (the inner), generally of glass, with a vacuum created between the walls, and a protective outer casing of metal, plastics or other material, sometimes covered with paper, leather, leather cloth, etc. The space between the vacuum container and the outer casing may be packed with insulating material (glass fibre, cork or felt). The heading also includes double-walled stainless steel vacuum insulated thermal flasks without a protective outer case, which perform temperature retention.
* * * *
The rulings under reconsideration classified various stainless steel water bottles having vacuum properties in heading 7323, HTSUS, as table, kitchen or other household articles of iron or steel. We have reconsidered these rulings, and it is now our position that this merchandise is properly classified in heading 9617, HTSUS, as vacuum flasks or other vacuum vessels.
Heading 9617, HTSUS, provides for vacuum flasks and other vacuum vessels, “complete with cases” (emphasis added). Heading 9617 does not specify what is meant by “complete with cases.” The Explanatory Note to heading 9617 clarify that “[t]hese articles consist of a double-walled receptacle (the inner), generally of glass, with a vacuum created between the walls, and a protective outer casing of metal, plastics or other material.” The EN does not clearly state that the outer casing cannot be the same as the outer wall.
The containers at issue in NY N297758, NY N297169, NY N254461 and NY N264760 feature an insulating, double-walled construction with a partial vacuum in between the two walls. However, the bottles lack an additional outer casing beyond the second stainless steel wall. CBP determined that the lack of an outer protective casing on the beverage containers at issue precluded their classification in heading 9617, HTSUS. We do not believe that this position is supported by the legal text or the ENs to heading 9617. Neither heading 9617 nor the EN to heading 9617 clearly state that the outer casing cannot be the same as the outer wall. In addition, the EN to heading 96.17 were revised in 2017 to explicitly clarify that “the heading also includes double-walled stainless steel vacuum insulated thermal flasks without a protective outer case, which perform temperature retention.” Thus, we find that the scope of heading 9617 is not limited to containers having both a double walled vacuum construction and an additional outer casing. The instant containers have a double-walled construction which performs temperature retention; therefore, the products meet the terms of heading 9617 whether they have an additional outer casing or not.
Note 1(m) to Section XV excludes products of Chapter 96 from classification in Chapters 72-83. As the instant merchandise is prima facie classifiable in heading 9617, it cannot be classified in heading 7323. The beverage containers at issue in NY N254461 and NY N264760 are therefore classified in heading 9617, subheading 9617.00.10, HTSUS.
This conclusion is consistent with prior CBP rulings (see e.g., NY I82229, dated September 3, 2022, NY K80408, dated December 10, 2003, NY N057957, dated July 2, 2009, and HQ 962648, dated November 9, 1999, classifying similar beverage containers with double-walled construction and vacuum properties in heading 9617, HTSUS), and with the decision by the Harmonized System Committee (HSC) of the World Customs Organization to classify a similar product in heading 9617, as reflected in the WCO Compendium of Classification Opinions (C.O.) at C.O. 961700/1 (“Double-walled stainless steel vacuum insulated thermal flask”). In classifying the stainless steel vacuum flask in heading 96.17, the HSC likewise considered that the outer layer could be regarded as an “outer casing of metal” and, that being so, the product was in conformity with the legal text and the Explanatory Note to heading 96.17 despite the lack of an additional outer casing.
The comments received in response to the Notice of Proposed Revocation argue that neither the change to the Explanatory Notes of heading 9617 nor the decision by the HSC to classify vacuum insulated steel containers in heading 9617 can alter the plain meaning of the legal text. We agree. As noted above, the legal text provides for “Vacuum flasks and other vacuum vessels, complete with cases.” The instant containers are clearly vacuum flasks within the meaning of the tariff, featuring vacuum insulation between the inner and outer shell of the container. They also have a hard, durable and protective outer shell of steel, which is consistent with the meaning of the term “case.” There is no requirement in the legal text that a case must be separate, distinct, unintegrated covering and not a protective outer shell or covering. Thus, we find that the legal text supports classification of the instant merchandise in heading 9617. The ENs and HSC classification decision are merely evidence of a common legal interpretation consistent with our own.
HOLDING:
Pursuant to GRIs 1 and 6, the stainless steel containers at issue are classified in
heading 9617, specifically subheading 9617.00.10, HTSUS., which provides for “Vacuum
flasks and other vacuum vessels, complete with cases; parts thereof other than glass inners:
Vessels: Having a capacity not exceeding 1 liter.” The 2021 column one, general rate of
duty is 7.2% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N297758, dated July 9, 2018, NY N297169, dated June 15, 2018, NY N254461, dated September 10, 2014, and NY N264760, dated June 16, 2015, are hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division