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HQ 952099


February 3, 1993

CLA-2 CO:R:C:M 952099 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 7615.10.70

District Director
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266

RE: Protest No. 3801-92-100229; Aluminum Foil Containers; Household articles; EN 76.12; EN 76.15

Dear Sir:

This is in reference to Protest No. 3801-92-100229, dated January 22, 1992, which concerned the classification of aluminum foil containers under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The articles which are the subject of this protest are aluminum foil containers from Canada. They come in various sizes and shapes (carry-out containers, pizza pans, tart pans, pot pie pans, pie plates, roasters, etc.), and are used in the home, restaurants, hotels and similar places for cooking, kitchen or other applications.

The protestant states that they are generally designed for and used in the preparation, storing or serving of food. The protestant estimates that 75% of the containers are used by restaurants for take-out purposes, 20% by wholesale club/retail consumers, and 5% by food processors and commercial bakers.

The containers were entered under either subheading 7615.10.70, or 7615.10.90, HTSUS. Heading 7615, HTSUS, provides for table, kitchen or other household articles of aluminum. The merchandise was classified upon liquidation under subheading 7612.90.10, HTSUS, which provides for other aluminum casks, - 2 -
drums, cans, boxes and similar containers for any material, of a capacity not exceeding 20 liters.

ISSUE:

Whether the aluminum foil containers are classifiable as table, kitchen or other household articles of aluminum.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 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 headings at issue are as follows:

7612 Aluminum casks, drums, cans, boxes and similar containers (including rigid or collapsible tubular containers), for any material . . . of a capacity not exceeding 300 liters, whether or not lined or heat insulated . . .

7615 Table, kitchen or other household articles and parts thereof, of aluminum . . .

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to Heading 7612, HTSUS, pg. 1068, states that "[c]asks and drums of aluminum are mainly used for the transport of milk, beer, wine, etc.; aluminum cans and boxes are often used for packing foodstuffs." The Note further states that the provisions of EN 73.10 also apply, mutatis mutandis, to this heading.

EN 73.10, pg. 1022, states that Heading 7310, HTSUS (which provides for iron or steel tanks, casks, drums, cans, boxes and similar containers, for any material), covers "containers of a capacity not exceeding 300 l, but of a size easily moved or handled, commonly used for the commercial conveyance and packing of goods . . . ." EN 73.10 further states that the smaller containers covered by this heading "include boxes, cans, tins, etc., mainly used as sales packings for butter, milk, beer, preserves, fruit or fruit juices, biscuits, tea, confectionery, . . . etc."

The protestant argues that the articles of Heading 7612, HTSUS, are "substantial" containers which are often reused in commerce. Further, the protestant contends that these articles are items that are or can be closed, and that they are designed to transport large quantities over long distances. On the other hand, the protestant states that the aluminum foil containers in question are specially designed for temperature conductivity, heat retention and for keeping small quantities of food for short periods of time.

EN 76.15, pg. 1069, states that Heading 7615, HTSUS, covers the same type of articles as are described in the Explanatory Notes to Heading 7323, HTSUS, particularly the kitchen utensils described therein. EN 73.23, pg. 1035, states that Heading 7323, HTSUS, covers "a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels, restaurants, boarding-houses, hospitals, canteens, barracks, etc. [emphasis in original]." The articles for kitchen use covered by this heading include saucepans, preserving pans, casseroles, frying pans, roasting or baking dishes and plates, and kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.). The articles for table use covered by this heading include trays, dishes, plates, and bread or fruit dishes and baskets. The household articles covered by this heading include ashtrays.

It is our opinion that the containers in question are of a type described in EN 73.23 and are not commonly used for the commercial conveyance and packing of goods. They are primarily used in restaurants and in the home. They are used for cooking, kitchen and other applications, such as storage. Thus, the containers are covered by Heading 7615, HTSUS, which includes aluminum frying pans, baking dishes, kitchen storage tins, etc.

HOLDING:

The aluminum foil containers (carry-out containers, pizza pans, tart pans, pot pie pans, pie plates, roasters, etc.) are classifiable under subheading 7615.10.70, HTSUS, which provides for "[t]able, kitchen or other household articles and parts thereof, of aluminum . . . [c]ooking and kitchen ware . . . [n]ot enameled or glazed and not containing nonstick interior finishes . . . [o]ther." The corresponding rate of duty for articles of this subheading is 4% ad valorem.

The aluminum foil ashtrays and serving trays are classifiable under subheading 7615.10.90, HTSUS, which provides for other table, kitchen or household articles of aluminum. The corresponding rate of duty for articles of this subheading is - 4 -

3.8% ad valorem.

Accordingly, the protest should be granted in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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