CLA-2
OT:RR:CTF:EMAIN
H275806 SKK
Center Director
Industrial & Manufacturing Materials Center of Excellence and Expertise (CEE)
Port of Los Angeles/Long Beach
U.S. Customs & Border Protection
301 East Ocean Boulevard
Suite 1400
Long Beach, CA 90802
ATTN: Dharmendra Lilia and Nicolas Bishop
RE: Internal Advice; Classification of glass articles; votive-candle holder; drinking glasses; decorative household articles.
Dear Center Director:
This letter is in response to a request for Internal Advice (IA), dated May 5, 2016, initiated by U.S. Customs and Border Protection’s (CBP’s) Industrial & Manufacturing Materials Center of Excellence and Expertise (CEE) pursuant to 19 C.F.R. 177.11(b)(4). The IA was submitted at the request of Stein Shostak Shostak Pollack & O’Hara, LLP (counsel), on behalf of CGT General Merchandise, Inc. (CGT), and concerns the classification of certain glass articles under the Harmonized Tariff Schedule of the United States (HTSUS). The IA solicited advice on the classification of five styles of glass articles. This IA addresses the classification of two of those articles (identified as “12 oz. cup” and “16 oz. cup”). The other three (identified as “14-day glass,” “7-day glass,” and “400ml jar glass”) will be addressed in a separate IA, referenced H285038.
Samples of the subject merchandise were submitted to this office for examination.
FACTS:
The issue presented concerns the tariff classification of two styles of glass articles identified as “12 oz. cup” and “16 oz. cup.” It is noted that an additional article was initially included in this IA request, identified as the “Globe Scented Candle,” but that article was withdrawn from consideration by counsel.
The subject articles are clear glass vessels that are imported empty into the United States. Counsel submits that after importation they will be filled with a wick and candle wax, affixed with a plastic label that depicts religious iconography, and sold and used as religious candles. Samples of the subject merchandise were submitted to CBP in both their condition as imported and in their post-importation condition.
The “12 oz. cup” is tumbler-shaped, tapered, and measures approximately 5.25 x 3 inches. It features a smooth lip and a vertical flute design running the full length of the article. It is pressed, not tempered, and has a unit value of $0.15. The “12 oz. cup” was entered at the port of Los Angeles under subheading 7010.90.50, HTSUS.
The “16 oz. cup” is tumbler-shaped, tapered, and measures approximately 6 x 3.25 inches. It features a smooth lip and beveled edge on the bottom of the article. It is pressed, not tempered, and has a unit value of $0.12.
ISSUE:
What is the classification of the subject merchandise under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in pertinent part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."
The subheadings under consideration in this IA are as follows: 7010 Carboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods; preserving jars of glass; stoppers, lids and
other closures, of glass:
7010.90 Other
7010.90.50 Other containers (with or without their closures)... .
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
7013.37 Other drinking glasses, other than of glass-ceramics: Other:
7010.30.10 Other: Valued not over $0.30 each… .
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
7013.99 Other glassware: Other:
7013.99.35 Other: Votive-candle holders… .
Headings 7010 and 7013, HTSUS, are both considered "use" provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS, states:
“[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 U.S. Court of International Trade (CIT) has provided factors which are indicative, but not conclusive, to apply when determining whether particular merchandise falls within a class or kind. They 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 Kraft, Inc., v. United States, USITR, 16 CIT 483, (June 24, 1992); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. As a general rule, a glass article's physical form will be determinative of its principal use and the class or kind of article to which it belongs. Should a glass article's physical form not be determinative of the class or kind of merchandise to which it belongs, or should its physical form indicate it belongs to more than one class or kind, CBP considers the other principal use criteria enumerated above. See T.D. 96-7, 61 FR 223, 229 (Jan. 3, 1996).
An initial reading of the legal text of the competing headings indicates that glass articles classifiable in heading 7010, HTSUS, are excluded from classification in heading 7013, HTSUS. Our analysis, therefore, begins with whether the “12 oz. cup” and the “16 oz. cup” are classifiable in heading 7010, HTSUS, which provides for bottles, vials and other containers of glass which are of a kind used for the conveyance or packing of goods. Explanatory Note (EN) 70.10 of the Harmonized Commodity Description and Coding System, states that heading 7010 "covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.)." The ENs, although not dispositive, are examined for the proper interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (Aug. 23, 1989).
We do not consider the glass articles identified as “12 oz. cup” and “16 oz. cup” as belonging to the class or kind of merchandise contemplated by heading 7010, HTSUS. The types of containers found in heading 7010, HTSUS, are principally used to convey a product to the consumer who then uses the product and discards the container. See Headquarters Ruling Letters (HQs) 950426, dated June 19, 1992 and 956083, dated, May 16, 1994. The “12 oz. cup” and “16 oz. cup” are not principally used to commercially convey candle wax and then be discarded; rather, in their condition as imported, they have the form of a class or kind of article principally used as a drinking glass. Moreover, in conducting market research on this commodity, CBP located seemingly identical articles to the “12 oz. cup” and “16 oz. cup” that are sold filled with wick and poured wax, both with and without religious labels, and are marketed and sold as “re-usable cup candles.” This marketing is persuasive evidence that after the candle is consumed, the product is intended to be re-used in a manner suited to its physical form as a drinking glass. See http://www.eternaluxcandle.com/decorative-candles-manufacturer/religious-candles/reusable-cup-candles/5-5inch-reusable-cup-candles/solid-white-wax-unscented-5-5-reusable-cup-candle.html (last visited February 8, 2016). Based on the foregoing, we do not view these articles as classifiable under heading 7010, HTSUS.
Based on the physical forms of the “12 oz. cup” and “16 oz. cup,” we consider them to belong to a class or kind of merchandise that is principally used as "drinking glasses." In this regard, it is noted that these articles are tumbler-shaped, tapered, possess appropriate dimensions for use as a drinking class, and feature a smooth lip. CBP has classified articles possessing the form of a drinking glass under subheading 7013.37, HTSUS. See New York Ruling Letter (NY) N240451, dated April 26, 2013; NY N230635, dated October 1, 2012; NY N168516, dated June 23, 2011, and; NY N083987, dated December 2, 2009. It is further noted that these styles do not possess the features that CBP has deemed to be inconsistent with use as a drinking glass (i.e., molded seams, irregular lips, embedded manufacturing information, knurling). See HQ 954308, dated June 6, 1994; HQ 955281, dated July 29, 1995, and; HQ 953096, dated August 9, 1993.
Counsel asserts that the “12 oz. cup” and “16 oz. cup” are classifiable under subheading 7013.99.35, HTSUS, as votive-candle holders. In support of this position, Counsel cites to HQ 960022, dated May 1, 1998. In that ruling, a glass article measuring approximately 4 x 2-5/16 inches, and imported empty without any design or labeling affixed, was classified under subheading 7013.99.35, HTSUS. The article at issue in HQ 960022 was described as having a beveled, square-patterned pattern on its bottom half, an irregular lip, molded seams, and manufacturing information embedded on its bottom. As the “12 oz. cup” and “16 oz. cup” are of significantly different dimensions, and do not possess irregular lips, molded seams, and embedded manufacturing information, CBP does not view them as substantially similar to the articles at issue in HQ 960022. Moreover, CBP has long held that glass votive-candle holders are glass holders principally used for commemorative, devotional or religious purposes. See, HQ 088742 dated April 22, 1991, and HQ 950246 dated June 29, 1992. In those rulings, as is the case with the articles at issue, additional information was submitted to CBP after entry that stated that the glass vessels were filled with a wick and poured wax after importation, affixed with religious motifs or labels, and sold predominantly to consumers who use them for devotional purposes. In those rulings, CBP held that while this additional information was informative, it was not determinative of how, at the time of importation, the merchandise was distinguishable as being used for devotional purposes. This analysis also applies to the subject merchandise at issue in this IA and we are of the opinion that classification under subheading 7013.99.35, HTSUS, as a votive-candle holder, is not proper as there is nothing about the physical forms of the “12 oz. cup” and “16 oz. cup” in their condition as imported that distinguishes them as being used for devotional purposes. HOLDING:
By application of GRI 1, the articles identified as “12 oz. cup” and “16 oz. cup” are classified in subheading heading 7013.37.1000, HTSUS, which 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): Other drinking glasses, other than of glass-ceramics: Other: Other: Valued not over $0.30 each.” The column one “general” rate of duty is 28.5% ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are available at www.usitc.gov.
You are directed to mail this decision to the IA applicant no later than 60 days from the date of this letter. On that date, Regulations and Rulings will make the decision available to both CBP personnel and the public at www.cbp.gov, by means of the Freedom of Information Act, and other public methods of distribution.
You may provide a copy of this letter to the IA requester.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division