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HQ 951391




August 10, 1992

CLA-2 CO:R:C:M 951391 EJD

CATEGORY: CLASSIFICATION

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

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

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.

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,
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


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