CLA-2 CO:R:C:G 087727 DFC

Mr. William Asta
Import Manager
Himark Enterprises, Inc.
155 Commerce Drive
Hauppauge, New York 11787

RE: Reconsideration of New York Ruling Letter (NYRL) 840647 dated May 19, 1989. Spice rack; Rack spice

Dear Mr. Asta:

We have been asked to reconsider the result reached in NYRL 840647 dated May 19, 1990, concerning the tariff classification of a spice rack manufactured in Taiwan.

FACTS:

The merchandise which was the subject of the referenced ruling is a spice rack consisting of twelve glass bottles with caps, set in a wire and wood rack.

In NYRL 840647 you were advised that this merchandise is classifiable under subheading 7010.90.50, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods, other containers (with or without their closures), holding not over 118ml, and entitled to free entry.

Our New York office is now of the opinion that the spice rack is more properly classifiable in subheading 7013.39.2000, HTSUSA, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other, other, valued not over $3 each, with duty at the rate of 30 percent ad valorem.

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ISSUE:

Is the spice rack more specifically described as table or kitchen glassware rather than as glass containers?

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the statute. Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). 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 GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

In this instance GRI 3 is applicable. Its relevant portions read as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods. . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

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The Explanatory Notes (EN), are the official interpretation of the Harmonized System at the international level. The EN for GRI 3(b) reads in pertinent part as follows:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, 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.

Inasmuch as the spice rack is composed of metal, wood and glass, classification must be based on the material that imparts the essential character to the merchandise. In this instance the role of the jars (glassware) is paramount. The function of the wire and wood rack is subsidiary to the function of the jars which is to store and display the spice. Consequently, the jars give the entire article its essential character.

The EN to Heading 7010, HTSUSA, states that "[t]his heading covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products...." Thus, foods and beverages are commonly sold or marketed to consumers in the containers covered by Heading 7010, HTSUSA. However, the spice jars in issue are not commonly used to sell or market merchandise to the consumer. Unlike typical containers, they will not be discarded after the contents are consumed. Rather, they will be used within the household to store spices and similar items.

Salt shakers are mentioned in the EN to Heading 7013, HTSUSA, among the exemplars of glass table/kitchen articles classifiable in Heading 7013, HTSUSA. The spice jars are similar to salt shakers in that they are used to store food material within the home rather than as containers for marketing food.

Additionally, the spice jars may not be regarded as preserve jars classifiable in Heading 7010, TSUSA. Preserve jars classifiable in Heading 7010, HTSUSA, should be limited to merchandise in the sizes and shapes of typical "Mason"-type preserve jars which hold the volumes typical of preserve jars (i.e., one half pint through one half gallon). Spice jars are

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not in the size and shape of typical preserve jars. They are not regarded as preserve jars in the industry. Like salt shakers, spice jars are used to store or hold food material within the home, not to preserve food material.

HOLDING:

In view of the foregoing, it is our position that the spice rack is more specifically provided for under the provision for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, other, other, valued not over $3 each, in subheading 7103.39.2000, HTSUSA, with duty at the rate of 30 percent ad valorem.

In accord with the above determination, NYRL 840647 is modified pursuant to 19 CFR 177.9(d). If pending transactions are adversely affected by this revocation, you may, at your discretion, notify this office and apply for temporary relief from the binding effects of this new modification as may be dictated by the circumstances.

Sincerely,

John Durant, Director
Commercial Rulings Division

6cc AD NY Seaport
cahill library /peh
087727