CLA-2 R:C:M 957780 MMC
U.S. Customs Service
Commercial Operations Division
New York Seaport
6 World Trade Center, Rm 423
New York, New York 10048
RE: IA 11/95; sand timers; EN 91.GEN (a,), GEN 3(b), 70.13; Composite
good; GRI 3; Heraeus-Amersil, Inc, v. U. S., 8 CIT 329, 600 F.
Supp. (1984); 315(d), Tariff Act of 1930; Sturm, A Manual of
Customs Law (1993), 52.4.
Dear Area Director:
This is in response to your memorandum of February 22, 1995, (CLA-01-S: C: TOB: 213/NM) forwarding a request for internal advice(IA)
initiated by a customs broker regarding the tariff classification of 3
models of sand timers under the Harmonized Tariff Schedule of the United
States (HTSUS). A sample of each model was submitted for examination.
The articles under consideration are sand timers. The body of each
consists of glass (in the shape of an hourglass) which contains sand.
Model 309 (3 minute timer )and Model 706 (15 minute timer) are framed
in wood. Model 209(b), a 30 second timer, has a plastic frame.
The IA applicant contends that the sand timers are classifiable
under subheading 4419.00.80, HTSUS, as tableware and kitchenware, of
wood: other. According to the IA applicant, this classification is
based on an established and uniform practice under the Tariff Schedules
of the United States (TSUS). This classification stems from the
reasoning that the wood portion of the timer provides the support
structure and chief value to the subject article. In the alternative,
the IA applicant claims that the sand provides the essential character
of the article as it is the component which provides the measurement of
In addition to these two possible classifications, it has been
suggested that the essential character of the article is not
determinable and therefore, the sand timers are classifiable under the
applicable provision which appears last in the HTSUS.
The under consideration headings are:
3926 Other articles of plastics and articles of other
materials of headings 3901 to 3914
4419 Tableware and kitchenware, of wood
6815 Articles of stone or of other mineral substances (including
articles of peat), not elsewhere specified or included
7013 Glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes (other than that of
heading 7010 or 7018)
7020 Other articles of glass
9106 Time of day recording apparatus and apparatus for measuring,
recording or otherwise indicating intervals of time, with
clock or watch movement or with syncronous motor ( for
example, time registers, time-recorders):
What is the proper classification of the sand timers?
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
part, that "for legal purposes, classification shall be determined
according to terms of the headings and any relative section or chapter
Because the sand timers are used to measure time, we first must
determine if they are classifiable under Chapter 91, HTSUS, which covers
clocks and watches and parts thereof.
In understanding the language of the headings, the Explanatory
Notes (ENs) of the Harmonized Commodity Description and Coding system
may be utilized. The ENs, although not dispositive, or legally binding,
provide a commentary on the scope of each heading of the HTSUS, and are
generally indicative of the proper interpretation of the HTSUS. See,
T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN GEN 91,
pg.1539, states, in pertinent part, that:
...In addition to the exclusions specified in the Explanatory Note
to each heading, this Chapter excludes, inter alia:
(a) Sundials and hourglasses (classified according to their
The ENs specifically exclude hourglasses from classification in chapter
91, HTSUS, and direct that they are classifiable according to their
constituent material. These sand timers, which are smaller versions of
hourglasses, consist of four different materials, plastic, sand, wood
and glass. Inasmuch as the sand timers constituent materials are
described by more than one heading, they cannot be classified according
to GRI 1.
GRI 2(b) states, in pertinent part, that any 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. The classification of goods consisting of more
than one material or substance shall be according to the principles of
GRI 3 states that when, by application of rule 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 or to part only of the items in a set put up for
retail sale, 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.
Several of the headings under consideration describe part only of the
article. Therefore, the headings are considered equally specific and
GRI 3(b) must be examined.
GRI 3(b) states:
(b) Mixtures, composite goods consisting of different materials
or made up of different components, and goods put up for retail
sale, 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
According to EN GRI 3, pg.4, 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.
The IA applicant suggests that the wood or sand imparts the sand
timers' essential character. We disagree. The wood's function of
supporting the glass is no more or less important than the functioning
of the glass to hold the sand or the sand to measure the time. Because
none of the constituent materials constitute the articles' essential
character, GRI (C) must be applied.
Heading 7013, HTSUS, which provides in pertinent part for
glassware of a kind used for table, kitchen, toilet, office, indoor
decoration or similar purposes, and heading 7020, which provides for
other articles of glass both describe the glass portion of the sand
timers. EN 70.13, pg. 936-937, states, in pertinent part, that:
...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...
The glass portion of the sand timers does not give the timer the
character of a glass article. Rather, they merely contain, as part of
their whole, a shaped piece of glass. Therefore, sand timers are
excluded from classification under heading 7013, HTSUS.
GRI 3 (c) states:
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.
The heading which appears last in numerical order among those which
equally merit consideration, is heading 7020, HTSUS. Therefore, the
article is classifiable under heading 7020, HTSUS, as other articles of
Finally, we note that IA applicant suggests that an established
and uniform practice, has developed under the TSUS with respect to sand
timers. The U. S. Courts have long recognized that the Customs Service
has and does establish uniform practices in regard to the treatment of
goods coming into this country. A uniform practice may be established,
inter alia, by actual uniform treatment of goods by the various ports.
See, Heraeus-Amersil, Inc, v. United States, 8 CIT 329, 600 F. Supp.
(1984) and 315(d), Tariff Act of 1930, as amended. The existence of an
established and uniform practice must be shown by positive evidence.
Strum, A Manual of Customs Law (1993), 52.4. The IA applicant has not
provided any positive evidence of an established and uniform practice.
Furthermore, classification of goods under the HTSUS, which
became effective as the tariff law of the United States on January 1,
1989, is governed by the General Rules of Interpretation, which provide
in pertinent part, 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 GRIs." The classification of the instant sand timers
results from a change made by Congress in enacting a new tariff
schedule, the HTSUS.
For the foregoing reasons we find that the sand timers are
classifiable under heading 7020, HTSUS, as other articles of glass with
a general column one duty rate of 6.3% ad valorem.
This decision should be mailed by your office to the internal
advice requester no later than 60 days from the date of this letter. On
that date, the Office of Regulations and Rulings will take steps to make
the decision available to Customs personnel via the Customs Rulings
Module in ACS and the public via the Diskette Subscription Service,
Freedom of Information Act and other public access channels.
John Durant, Director