H308673

HQ H308673 August 10, 2020 CLA-2 OT:RR:CTF:EMAIN H308673 EKR CATEGORY: Classification TARIFF NO.: 9015.80.80 Mr. David Homan Beacon Promotions 2121 S. Bridge Street New Ulm, MN 56073 RE: Revocation of NY N296613, NY K81163, NY K80012, NY H88046 and NY G81419; Rain gauges. Dear Mr. Homan: This ruling is in reference to New York Ruling Letter (NY) N296613, dated May 30, 2018, regarding the classification of a plastic rain gauge under the Harmonized Tariff Schedule of the United States (HTSUS). In NY 296613, U.S. Customs and Border Protection (CBP) classified the subject article in subheading 3924.90.56, HTSUS, which provides for “[o]ther household articles…of plastics: other: other…other.” Upon reconsideration, CBP has determined that NY 296613 is in error. CBP has also reviewed NY K81163, dated December 10, 2003, NY K80012, dated November 7, 2003, NY H88046, dated February 8, 2002, and NY G81419, dated September 18, 2000, which involve the classification of substantially similar rain gauges of glass in subheading 7020.00.60, HTSUS, which provides for “[o]ther articles of glass: other.” As with NY N296613, we have determined that the tariff classification of the subject merchandise in these rulings is incorrect. CBP is revoking NY N296613, NY K81163, NY K80012, NY H88046, and NY G81419 according to the analysis set forth below. 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 of the proposed revocations of NY N296613, NY K81163, NY K80012, NY H88046, and NY G81419 was published on July 1, 2020 in the Customs Bulletin, Volume 54, No. 25. CBP received no comments in response to the proposed action. FACTS: In NY N296613, the subject merchandise is described as an open topped vessel, which tapers to a point, composed of weather resistant polystyrene plastic and measuring approximately 2-3/4 inches in width, 12-1/4 inches in length and 1-1/2 inches in depth. Rainfall can be measured in amounts up to 4 inches by reading the reverse imprint on the gauge and matching it with the level of the rainwater in the gauge. The tapered point can be inserted in the ground or the item may be attached to a post using the keyhole openings near the base of the gauge. In NY K81163, CBP classified a 6-inch calibrated glass tube and a three-dimensional “polystone” frog figurine holder. The frog figurine is holding the glass tube in one hand, and a 5-inch metal umbrella in the other. The glass tube, which is glued to the base of the holder, is designed to be used as a measuring device to catch and monitor rainfall. In NY K80012, CBP classified a 6-inch calibrated glass tube and a three-dimensional agglomerated stone animal figurine holder measuring approximately 6.5 inches x 5 inches x 3.5 inches. The glass tube, which is placed into the figurine holder, is designed to be used as a measuring device to catch and monitor rainfall. In NY H88046, the subject merchandise is described as a five and one-half inch calibrated glass tube and a three-dimensional agglomerated stone holder with metal stake. The glass tube, which is placed into the agglomerated stone holder, is designed to be used as a measuring device to catch and monitor rainfall. In, NY G81419, the subject merchandise is described as a five and one-half inch tube-shaped calibrated glass vessel that is placed in a “polyresin” frog-shaped base. The glass vessel is designed to be used as a measuring device to catch and monitor rainfall. ISSUE: Whether a simple rain gauge is properly classified in heading 9015, HTSUS, as a “meteorological” instrument, or in the heading appropriate to its constituent material (heading 3924, HTSUS for “household articles… of plastics” or heading 7020, HTSUS, for “[o]ther articles of glass”)? LAW AND ANALYSIS: Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will 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 will then be applied in order. The following provisions of the HTSUS are under consideration: 3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: 3924.90 Other: 3924.90.56 Other… * * * 7020.00 Other articles of glass: 7020.00.60 Other… * * * 9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof: 9015.80 Other instruments and appliances: Other: 9015.80.80 Other…. Chapter 39, Note 2(u) states that articles of Chapter 90 cannot be classified in Chapter 39. Chapter 70, Note 1(d) likewise states that articles of Chapter 90 cannot be classified in Chapter 70. Chapter 90, Note 1(m) excludes “capacity measures” from Chapter 90, HTSUS, stating that such goods are to be classified instead according to their constituent material. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide commentary on the scope of each HTSUS heading and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 90.15 provides, in relevant part: (V) METEOROLOGICAL INSTRUMENTS * * * The group does, however, include the following: * * * (8) Rain gauges and indicators, for measuring rainfall in a particular place. The simplest type consists of a funnel of known diameter fixed to a receptacle to collect the rain which is then measured in a calibrated tube. * * * If the rain gauges are properly classified in heading 9015, HTSUS, they are precluded from classification in Chapters 39 and 70 by operation of Note 2(u) to Chapter 39, and Note 1(d) to Chapter 70. Therefore, we first consider whether the instant rain gauges can be classified as meteorological instruments of heading 9015, HTSUS. Each of the products under consideration consists of a graduated tube, made of either plastic or glass, and designed to be installed outdoors. The tubes are open at the top to allow rainwater to collect in the tube, and marked to allow the user to determine the total rainfall based on the amount of rain collected in the tube. The subject rain gauges are prima facie described by heading 9015, HTSUS, in that they are meteorological instruments designed to measure rainfall. In fact, EN 90.15 explicitly states that such simple rain gauges are classified in heading 9015, HTSUS. We note that, as mentioned in NY H88046, note 1(m)* to Chapter 90 excludes capacity measures from classification in Chapter 90. They are instead to be classified according to their constituent material. However, although the instant rain gauges use the volume of rain collected in the tube to extrapolate a rainfall measurement, they are not “capacity measures.” A “capacity measure,” such as a kitchen measuring spoon, is used to measure out a specific volume of a substance. See, e.g. Headquarters Ruling Letter (“HQ”) 968080, dated May 19, 2006 (identifying a set of stainless steel measuring spoons as “capacity measures” and classifying them in heading 7323, HTSUS, as “[t]able, kitchen or other household articles… of steel.”); HQ 968081 (dated May 19, 2006; and N025387, dated April 21, 2008. The instant articles are not designed to measure out a desired volume of liquid. Therefore, they are not “capacity measures” excluded from Chapter 90 by Note 1(m) to Chapter 90. As a result, classification according to the constituent material of the article, in heading 3924, HTSUS as a household article of plastic, or in

Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will 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 will then be applied in order. The following provisions of the HTSUS are under consideration:3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:3924.90 Other:3924.90.56 Other…* * *7020.00 Other articles of glass:7020.00.60 Other…* * *9015 Surveying (including photogrammetrical surveying), hydrographic, oceanographic, hydrological, meteorological or geophysical instruments and appliances, excluding compasses; rangefinders; parts and accessories thereof:9015.80 Other instruments and appliances: Other:9015.80.80 Other….Chapter 39, Note 2(u) states that articles of Chapter 90 cannot be classified in Chapter 39. Chapter 70, Note 1(d) likewise states that articles of Chapter 90 cannot be classified in Chapter 70. Chapter 90, Note 1(m) excludes “capacity measures” from Chapter 90, HTSUS, stating that such goods are to be classified instead according to their constituent material.The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide commentary on the scope of each HTSUS heading and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 90.15 provides, in relevant part:(V) METEOROLOGICAL INSTRUMENTS* * *The group does, however, include the following:* * *(8)   Rain gauges and indicators, for measuring rainfall in a particular place. The s