CLA-2 OT:RR:CTF:TCM H136475 CkG
TARIFF NO: 7013.49.20
U.S. Customs and Border Protection
Director of Field Operations
New York Field Office
One Penn Plaza
New York, NY 10119
RE: Revocation of HQ 957780, dated July 18, 1995; classification of sandglass timers
This is in reference to Headquarters Ruling Letter (HQ) 957780 issued by Customs and Border Protection (CBP) on July 18, 1995, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of sand timers. We have reconsidered this decision, and for the reasons set forth below, have determined that classification of the sand timers in heading 7020, HTSUS, as other articles of glass, was incorrect.
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 HQ 957780
was originally published on April 8, 2015, in Volume 49, Number 14 of the Customs Bulletin. A corrected notice was published on May 13, 2015, in Volume 49, Number 19 of the Customs Bulletin, to clarify that the comment deadline was 30 days from the date of publication in the Customs Bulletin and not in the Federal Register, and that the comment due date would be 30 days from publication of the corrected notice. No comments were received in response to this notice.
The articles under consideration are 15 minute, 3 minute and 30 second glass
timers. They are used in a home/kitchen to measure the passage of time for the
preparation of eggs and other food items. The body of each consists of a glass vessel
with obconical ends connected by a constricted neck (i.e., an hourglass shape) through
which a quantity of sand runs in the specified time intervals. Model 309 (a 3 minute
timer) and Model 706 (a 15 minute timer) are framed in wood. Model 209(b), a 30
second timer, has a plastic frame. The invoice values are as follows: Model 209(b) and
309 are valued at under $3, and Model 706 is valued between $3 and $5.
Whether the instant sand timers are classified in heading 7013, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, or heading 7020, HTSUS, as other articles of glass.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relevant section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
The 2011 HTSUS provisions under consideration are as follows:
6815: Articles of stone or of other mineral substances (including carbon fibers, articles of
carbon fibers and articles of peat), not elsewhere specified or included:
6815.99.40: Other . . .
* * * * *
7013: Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass ceramics
7013.49.20: Valued not over $3 each…
Valued over $3 each:
7013.49.50: Valued over $3 but not over $5 each . . .
* * * * *
7020: Other articles of glass:
7020.00.60: Other . . .
* * * * *
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 70.13 provides, in pertinent part, as follows:
Articles of glass combined with other materials (base metal, wood, etc.), are classified in this heading only if the glass gives the whole the character of glass articles. Precious metal or metal clad with precious metal may be present, as minor trimmings only; articles in which such metals constitute more than mere trimmings are excluded (heading 71.14).
EN 70.20 provides as follows:
This heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature.
These articles remain here even if combined with materials other than glass, provided they retain the essential character of glass articles.
* * * * *
There is no eo nomine provision for hourglass timers in the HTSUS. Classification of this article thus cannot be determined according to the terms of GRI 1.
GRI 2(b) states that "[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."
GRI 3 states as follows:
When by application of [GRI] 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected 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 or precise 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.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
GRI 3(a) provides, in relevant part, that when goods are prima facie classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. EN (IV) to GRI 3(a) explains that: "in general it may be said that: (a) A description by name is more specific than a description by class" and "(b) If the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete." Our courts have interpreted this so-called "rule of relative specificity" to mean that "we look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty." Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998).
The instant timers are composite goods of wood or plastic, sand and glass, and are thus prima facie classifiable under more than one heading. The wood frames of models 309 and 706, imported alone, would be classified in Chapter 44, HTDUD, as an article of wood, and the glass body in Chapter 70, HTSUS, as an article of glass. The plastic frame of model 209(b) would be classified in Chapter 39, HTSUS, as an article of plastic. The sand would be classified in Chapter 68, HTSUS, as an article of stone or other mineral substance. The HTSUS provisions covering the articles refer only to part of their component materials. However, of the three headings at issue, heading 7013 still provides the more specific description of the goods; as between eo nomine and use provisions, the latter is generally regarded as being the more specific provision because it is the hardest to satisfy. See e.g., HQ 087708, dated September 28, 1990.
Heading 7013, HTSUS, is a “principal use” provision (Group Italglass, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993)), governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides that:
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 immediately 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.
The Court in Group Italglass stressed “that it is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.” Group Italglass, 839 F. Supp. at 867 Principal use’ is defined as the use “which exceeds any other single use”. Automatic Plastic Molding, Inc., v. United States, 26 CIT 1201, 1205 (2002).
The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise is classifiable under a particular “principal use” tariff provision. These include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976).
The products at issue are 15 minute, 3 minute and 30 second timers. Their physical characteristics are consistent with principal use in a kitchen or office; they must be placed on a flat, stable surface in order for the sand to run through them in the correct manner and time interval. The specified time intervals are also convenient for the preparation of foods. They are marketed for use in a home or kitchen, to tell time for the preparation of eggs and other food items. Glass timers in general are similarly marketed as office or home supplies, and sold in the same channels of trade—e.g., home and garden or kitchen departments of retailers such as amazon.com—as other home and kitchen appliances. Based on the above factors, we find that the instant timers are glassware of a kind used for table or kitchen purposes. As such, they are classified in heading 7013, HTSUS.
This finding is consistent with prior CBP rulings classifying similar timers as glassware for home or office use in heading 7013, HTSUS. See NY E86805, dated September 20, 1999 and NY I82591, dated June 12, 2002.
By application of GRI 3(a), the hourglass timers are classified in heading
7013, HTSUS. Model 309 and 209(b) are classified under subheading 7013.49.20, HTSUS, which provides for “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: Other: Other: Valued not over $3 each.” The 2011 column one, general rate of duty is 22.5% ad valorem.
Model 709 is classified in subheading 7013.49.50, HTSUS, which provides for “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: Other: Other: Valued over $3 each: Other: Valued over $3 but not over $5 each.” The 2011 column one, general rate of duty is 15% 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:
HQ 957780, dated July 18, 1995, is hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division