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HQ 967004




November 30, 2004

CLA-2 RR:CR:GC 967004AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.29.20

Mr. Peter W. Klestadt
Grunfeld, Desiderio, Lebowitz, Silverman and Klestadt LLP 399 Park Avenue, 25th Floor
New York, NY 10022-4877

RE: New York Ruling Letter J89555; drink mix kits from China

Dear Mr. Klestadt:

This is our decision regarding your letter, dated December 15, 2003, addressed to the Director, National Commodity Specialist Division, on behalf of your client, Shonfeld's USA, Inc., requesting reconsideration of New York Ruling Letter (NY) J89555, dated October 28, 2003, regarding the tariff classification, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS), of drink mix kits imported from China. Your letter was forwarded to this office for reply.

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, CBP published a notice in the October 13, 2004, Customs Bulletin, Volume 38, Number 42, proposing to modify New York Ruling Letter (NY) J89555, dated October 28, 2003, and to revoke any treatment accorded to substantially identical merchandise. No comments were received in response to this notice.

FACTS:

The merchandise consists of a margarita mix kit and a strawberry daiquiri mix package. Item no. DM-205586A is comprised of a bottle of margarita mix, a test tube of colored salt, and a decorated cylinder-shaped glass article. The Margarita mix consists of high fructose corn syrup, water, citric acid, natural and artificial flavor, sucrose acetate, iso-butyrate, and coloring.

Item no. DM-205586B is made up of a bottle of daiquiri mix, a test tube of colored sugar, and a decorated cylinder-shaped glass article. The daiquiri mix consists of water, sugar, fructose corn sweeteners, natural flavor, citric acid, sodium benzoate, and coloring. Instructions on the labels direct the consumer to combine the mixes with rum, tequila, or cointreau, add ice, shake, strain, and pour into a glass with a salt or sugar coated rim.

Both glass articles in the package measure approximately 6 inches high and 21/4 inches in diameter. They are frosted cylindrical articles with blending instructions for a margarita or daiquiri and a picture of one or the other of these drinks in the usual shaped drinking glass used for these beverages. The glass article in the package is valued between $0.30 and $3.

In NY J89555, CBP classified the daiquiri sugar in subheading 1701.91.10, HTSUS, which provides for cane or beet sugar and chemically pure sucrose in solid formother containing added coloring but not containing added flavoring matter. CBP classified the margarita and daquiri mixes in subheading 2106.90.99, HTSUS, which provides for food preparations not elsewhere specified or includedother otherpreparations for the manufacture of beveragescontaining sugar derived from sugar cane and/or sugar beets. CBP classified the margarita salt in subheading 2501.00.00, HTSUS, which provides for salt (including table salt and denatured salt) and pure sodium chloride, whether or not in aqueous solution or containing added anticaking or free-flowing agents. Lastly, CBP classified the cylinder-shaped glass articles in subheading 7013.99.50, HTSUS, which provides for glassware of a kind used for...toilet, office, indoor decoration and similar purposes...other glassware: other: other: other: valued over thirty cents but not over three dollars each.

ISSUE:

Whether hollow cylinder shaped glass articles packaged in a margarita and daiquiri kit are classified as drinking glasses in the HTSUS.

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, 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, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS headings and subheadings under consideration are as follows:

7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):

Drinking glasses, other than of glass-ceramics:

Other:

Other:

7013.29.20 Valued over $0.30 but not over $3 each

Other glassware:

7013.99 Other:

Other:

Other:

7013.99.50 Valued over $0.30 but not over $3 each

The dispute here arises at the subheading level as between drinking glasses and other glassware. An internet search reveals many tall cylindrical shaped glasses called an iced tea or Tom Collins glass for the drinks most often served in them. While the usual glass for a daiquiri or margarita is shaped quite differently, and is even pictured on the glass itself, the glass enclosed in these drink mix kits is recognizable as a drinking glass. It is referred to on the packaging as a "novelty glass" and it is quite clearly intended to be used as a drinking glass. Applying GRI 6, the product is more specifically described in subheading 7013.29, HTSUS, as a drinking glass.

HOLDING:

The glass article in the margarita and daiquari packages is classified in subheading 7013.29.2000, HTSUSA (annotated) the provision 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): Drinking glasses, other than of glass-ceramics: Other: Other: Valued over $0.30 but not over $3 each." The duty rate for the drinking glass is 22.5%.

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 the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

NY J89555 is MODIFIED to reflect the proper classification of the glass articles as stated above. The drink mixes, salt and sugar remain classified as they were in NY J89555.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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