CLA-2 CO:R:C:M 951391 EJD
TARIFF NO: 7013.29.10
District Director
U.S. Customs Service
300 South Ferry Street Room 2017
Terminal Island
San Pedro, California 90731
RE: Internal Advice 14/92; drinking glasses; glass containers; HQ 088123;
HQ 950617; HQ 088742; HQ 089054; 7010.90.50; 7013.99.35; 9405.50.40;
T.D. 56111 (75) and (98).
Dear Sir:
This is our response regarding Internal Advice (IA) request 14/92, on behalf
of Candle Corporation of America (Candle Corp.), represented by Barnes,
Richardson & Colburn, regarding the classification of certain glass containers
imported from Ecuador under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples were submitted for our examination.
FACTS:
The merchandise that is the subject of IA 14/92 is a glass container which
is imported into the United States empty and then filled with wax and used as a
candle holder. The glass containers are in a tapered cylindrical shape and are
approximately 4 inches in height, with a top about 2 3/4 inches in diameter, and
a bottom about 2 inches in diameter. They are made from low quality clear glass
which holds 250 cc of wax.
The importer has requested that we reconsider Headquarters Ruling Letter
(HQ) 088123. In HQ 088123, dated February 25, 1991, we issued a decision on
Protest and Request for Further Review No. XXXX-XX-XXXX concerning the
classification of glass containers imported from Ecuador. In this case, Candle
Corp. argued that the goods should be classified in subheading 7010.90.50,
HTSUS, as other glass containers. In HQ 088123, the containers were held to be
classifiable in subheading 7013.29.10, HTSUS, as drinking glasses. Radix Group
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International, an agent of Candle Corp., was notified on Customs Form 19, dated
February 28, 1991, of the denial of the protest and a copy of HQ 088123 was
furnished to them.
In HQ 950617, dated November 8, 1991, we issued a decision on the
reconsideration of HQ 088123. Barnes, Richardson & Colburn, an agent of Candle
Corp., were notified in HQ 950617 of Customs inability to rescind a decision to
deny a protest for further review once the decision had been issued to the party
in interest.
ISSUE:
Are the glass containers drinking glasses provided for in subheading
7013.29.10, HTSUS, or containers for conveyance or packing of goods provided for
in subheading 7010.90.50, HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff ~ Schedule of the
United States (HTSUS) in accordance with the General Rules of Interpretation
(GRIs). GRI 1 states in part that for legal purposes, classification shall be
determined according to the terms of the headings and any relative section or
chapter notes, and provided the headings or notes do not require otherwise,
according to GRIs 2 through 6.
Headings 7010 and 7013, HTSUS, are both considered "use" provisions..
Additional U.S. Rule of Interpretation l(a), HTSUS, provides:
In the absence of special language or context which
otherwise requires, a tariff classification controlled
by use (other than actual use) is to be determined in
accordance with the use in the United States at, or
immedtiately prior to, the date of importation, of goods
of that class or kind to which the imported goods
belong, and the controlling use is the principal use."
(Emphasis added.)
The two competing headings for these glass containers are
the following:
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
* * *"
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Heading 7013, HTSUS, provides for "[g]lassware of a kind
used for table, kitchen, toilet, office, indoor decoration or
similar purposes (other than that of headings 7010 or 7018)."
The importer contends that this product may be used as a jam
or jelly jar with a press-on lid, and therefore, should be
classified as a container in heading 7010. They argue that the
manufacturing process used to produce this merchandise is common
to beer, soda and jam or jelly containers, but not drinking
glasses. They claim the belief that the manner in which this
merchandise is produced renders it unfit and dangerous to use as
a drinking glass because of its flaws such as rough sharp
protuberances around the upper lid of container. Furthermore,
they claim that the thick lip around the upper edge of the glass
container makes it awkward and uneasy for beverage use. Finally,
this merchandise is made from low grade glass used to manufacture
untempered glass beer and soda bottles, not the higher grade of
glass normally used for drinking glasses.
The importer believes that the glass container should be
classified under subheading 7010.90.50, 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 * * * [o]ther...[o]ther containers (with or
without their closures)." The importer's counsel points to the
Explanatory Notes to heading 7010 which indicate that containers
classifiable in heading 7010 are produced by "...machines that
automatically feed molten glass into moulds. ... They are
usually made of ordinary glass ...." Since the merchandise in
question is produced in this manner, counsel argues that it is
classifiable under heading 7010, HTSUS, not heading 7013, HTSUS.
The Explanatory Notes (ENs) of the Harmonized Commodity
Description and Coding System (HCDCS) constitute the Customs
Cooperation Council's official interpretation of the Harmonized
System. They provide a commentary on the scope of each heading
of the Harmonized System and are thus useful in ascertaining the
classification of merchandise under the system. ENs, although
not dispositive, are to be looked to for the proper
interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (1989).
EN 70.10 states that "[t]his heading covers all glass
containers of the kinds commonly used commercially for conveyance
or packing of liquids or solid products (powders, granules,
etc.)." HCDCS, p.933. EN 70.10 further states that "[t]h[is]
heading does not include: ...(c) [d]ecanters, drinking glasses
and other glass containers being domestic glassware (heading
70.13), but not containers used primarily for the commercial
conveyance or packing of goods." HCDCS, p. 934.
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It is our position that the glass containers at issue are
not the class or kind of merchandise contemplated by this
heading. The types of containers found in heading 7010, HTSUS,
are solely used to convey a product to the consumer who uses the
product in the container and then discards the container.
The shape and the form of this product clearly indicates the
principal use of this article (as represented by its imported
form) as a drinking glass, not a container. Accordingly, the
glass containers are not properly classified under heading 7010,
HTSUS. '
Contrary to the importer's argument, many products
classified under heading 7013, HTSUS, are made from the same "low
grade glass" used in the manufacture of the instant merchandise,
i.e., cheap drinking glasses. While it is true that many
containers classified under heading 7010, HTSUS, are produced in
this manner, so are many of the cheaper household glassware items
which are classified under heading 7013, HTSUS.
EN 70.13 states that
[t]his heading covers the following types of articles,
most of which are obtained by pressing or blowing in
moulds: (1) t]able or kitchen glassware, e.g.
drinking glasses.... These articles may be e.g., of
ordinary glass, lead crystal, glass having low
coefficient of expansion (e.g., borosilicate glass) or
of glass ceramics (the latter two in particular, for
kitchen glassware)....
HCDCS, p. 936.
It is our position that the importer's arguments are not
convincing. In our opinion, the glass container's lip is not very unusual.
It is not different from numerous other ordinary, inexpensive, empty drinking
glasses provided for in subheading 7013.29, HTSUS.
Subheading 7013.29, HTSUS, provides for
[g]lassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purposes (other than that
of heading 7010 or 7018)...[d]rinking glasses, other than glass- ceramics...[o]ther.
In HQ 088123, we stated that "[t]he sample of the imported glass
shows it to be a type of drinking glass; nothing in its appearance gives
any indication that it is dedicated to any specific use .... " It is the
principal use, as distinguished from the actual use, which controls. The
principal use of this class or kind of glass is a drinking glass,
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classifiable under subheading 7013.29.10, HTSUS. Based upon the information
provided by the importer, we are not convinced that the principal use of this
glass will be to convey or pack merchandise.
HOLDING:
The glass containers are properly classified under subheading
7013.29.10, HTSUS, as "[g]lassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar purposes (other than that of
heading 7010 and 7018)...[d]rinking glasses, other than of glass-ceramics...[o]ther...[o]ther...[v]alued not over $0.30 each."
You should advise the Internal Advice applicant of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division