CLA-2 CO:R:C:M 956083 KCC
Mr. Howard Peltzman
Aqua-Touch Inc.
P.O. Box 400
Ellis Mill Road and New Jersey Avenue
Glassboro, New Jersey 08028
RE: NY 870585 revoked; glasses; principal use; Additional U.S.
Rule of Interpretation 1(a); 7013.29.10; drinking glasses;
7010; other containers used for the conveyance or packing of
goods; EN 70.10; HRL 950426; ; votive; HRL 088123; HRL
088742; HRL 950245
Dear Mr. Peltzman:
This is in reference to New York Ruling (NY) 870585 dated
January 28, 1992, which concerned the tariff classification of
glasses under the Harmonized Tariff Schedule of the United States
(HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C.
1625), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)
(hereinafter section 625), notice of the proposed revocation of
NY 870585 was published on April 13, 1994, in the Customs
Bulletin, Volume 28, Number 15.
FACTS:
NY 870585 classified the glasses at issue under subheading
7013.20.10, HTSUS, as drinking glasses. Your original submission
to Customs in New York dated December 17, 1991, described the
glasses as "Votive candle holder. Approximately two and a half
inches high, two inches in diameter."
ISSUE:
Are the glasses classified as drinking glasses under
subheading 7013.29.10, HTSUS, or as other containers used for the
conveyance or packing of goods under subheading 7010.90.50,
HTSUS, or as votive-candle holders under subheading 7013.99.35,
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 part, that "for legal purposes, classification
shall be determined according to the terms of the heading and any
relative section or chapter notes...." The competing subheadings
under consideration are as follows:
7010.90.50 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...Other...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)...
7013.29.10 Drinking glasses, other than of glass-ceramics...Other...Other....Valued not over
$0.30 each.
7013.99.35 Other glassware...Other...Other...Votive-candle holders.
Headings 7010 and 7013, HTSUS, are both considered "use"
provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS,
states that:
[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.
Subheading 7013.29.10, HTSUS, provides for drinking glasses.
We are of the opinion that the subject glasses are not of the
class or kind of "drinking glasses" classifiable under subheading
7013.29.10, HTSUS. At the time of importation, the physical
characteristics of the glasses indicates that they are not
principally used as drinking glasses. The size and design
features are not the type of features found on drinking glasses.
Therefore, the glasses are not properly classified as drinking
glasses.
Heading 7010, HTSUS, 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 (HCDCS) (pg.
933-934), 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 types of containers covered by this heading include:
(A) Carboys, demijohns, bottles (including syphon vases), phials
and similar containers, of all shapes and sizes, used as
containers for chemical products (acids, etc.), beverages,
oils, meat extracts, perfumery preparations, pharmaceutical
products, inks, glues, etc.
(B) Jars, pots and similar containers for the conveyance or
packing of certain foodstuffs (condiments, sauces, fruit,
preserves, honey, etc.), cosmetic or toilet preparations
(face creams, hair lotions, etc.), pharmaceutical products
(ointments, etc.), polishes, cleaning preparations, etc.
(C) Ampoules, usually obtained from a drawn glass tube, and
intended to serve, after sealing, as containers for serums
or other pharmaceutical products, or for liquid fuels (e.g.,
ampoules of petrol for cigarette lighters), chemical
products, etc.
(D) Tubular containers and similar containers generally obtained
from lamp-worked glass tubes or by blowing, for the
conveyance or packing of pharmaceutical products or similar
uses.
EN 70.10. The ENs, although not dispositive, are to be looked to
for the proper interpretation of the HTSUS. See, T.D. 89-80, 54
Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The key phrase in this instance is "commonly used
commercially for the conveyance" of products. The root word of
"commercially" is commerce which is described as the exchange or
buying and selling of commodities. Webster's Third New
International Dictionary (1986) and The Random House Dictionary
of the English Language (1983). The root word of "conveyance" is
convey which is described as to carry, bring or take from one
place to another; transport; bear. The Random House Dictionary
of the English Language (1983) and Webster's Third New
International Dictionary (1986).
We are of the opinion that the glasses at issue are not
principally used as the class or kind of merchandise contemplated
by heading 7010, HTSUS, are used. The types of containers found
in heading 7010, HTSUS, are principally used to convey a product
to the consumer who uses the product in the container and then
discards the container. The glasses at issue are not principally
used to commercially convey candle wax. The glasses are
necessary for the consumer to use the product, candle wax. In
use, the glasses support the candle wax. Additionally, some of
the glasses are not merely used as containers to convey the
candle wax to the consumer or support the candle wax. As the
glasses at issue hold the wax while it is being burned, they are
not properly classified under heading 7010, HTSUS. See,
Headquarters Ruling Letter (HRL) 950426 dated June 19, 1992,
which held that glass containers imported into the U.S. empty and
then filled with candle wax and a wick were classifiable as
votive-candle holders under subheading 7013.99.35, HTSUS, rather
than under subheading 7010.90.50, HTSUS.
Subheading 7013.99.35, HTSUS, provides for glass votive-candle holders. We have held that a glass votive-candle holder
is a glass holder chiefly used in churches, where the candles are
burned for devotional purposes. See, HRL 088123 dated February
25, 1991, HRL 088742 dated April 22, 1991, and HRL 950245 dated
December 10, 1991. Additionally, we have held that votive-candle
holders are generally of two types, large glasses or "sanctuary
lamps" which contain candles that burn for about a week and small
glasses which hold candles that burn for a few hours. See, HRL
950426 dated June 19, 1992.
We are of the opinion that the subject glasses are
principally used as votive-candle holders. The size of the
glasses, i.e., two and a half inches tall and two inches in
diameter, is indicative of the common votive-candle holder used
in churches and homes for devotional purposes. Therefore, the
glasses are properly classified under subheading 7013.99.35,
HTSUS.
HOLDING:
The glasses are classified under subheading 7013.99.35,
HTSUS, as glass votive-candle holders, which is currently subject
to the Column 1 duty rate of 6.6 percent ad valorem.
NY 870585 is revoked.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely,
John Durant, Director Commercial Rulings Division