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HQ 954792

November 24, 1993

CLA-2 CO:R:C:M: 954792 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

District Director
U.S. Customs Service
P.O. Box 789
Great Falls, MT 59403

RE: Protest No.3304-93-100028; 7010.90.50; Additional U.S. Note 1(a); ENs 70.10, 70.13; HRL's 088020, 087779, 951991, 953280, 087727

Dear District Director:

The following is our response to the request for further review of Protest No. 3304-93-100028 concerning your actions in classifying and assessing duty on glass flip top bottles under the Harmonized Tariff Schedule of the United States (HTSUS). Descriptive literature was submitted for our review.

FACTS:

The subject merchandise is a brown glass bottle with a polypropylene stopper attached to a metal snap closure. It holds up to 16 liquid ounces and appears to have some form of embossed decoration in the glass. The literature describes the bottle, refered to as the "E.Z. Cap Bottle", as 100% reusable and recyclable and suggests its primary use as storage for home brewed beer.

The merchandise was entered under subheading 7010.90.50, HTSUS, as jars for the commercial conveyance or packing of goods or as preserve jars. However, the entry was liquidated on April 30, 1993, under subheading 7013.39.20, HTSUS, as glassware of a kind used for table or kitchen purposes. The protest was timely filed on June 17, 1993.

The 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:[o]ther: [o]ther containers (with or without their closures) Free

7013.39.20 [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): [g]lassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass- ceramics: [o]ther: [o]ther: [v]alued not over $3 each. 30%
ISSUE:

Whether the glass flip top bottles are classifiable as jars for the commercial conveyance of goods and/or preserve jars or as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1, HTSUS, 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.

In this case, consideration was given to headings 7010 and 7013, HTSUS, which are both considered "use" provisions. Additional U.S. Note 1(a), HTSUS, provides that: [i]n absence of special language or context which otherwise requires-- (a) 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be consulted. The Explanatory Notes (EN), although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 70.10, pg. 933-934, states that "[t]his heading covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). They include...

(B) Jars, pots and similar containers for the conveyance or packing of certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.)...

These articles are usually made of ordinary glass (colourless or tinted) by pressure in a mold usually followed by blowing with compressed air. They generally have a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap. Some of these containers, however may be closed by corks or screwstoppers.

The heading also includes preserving jars of glass."

En 70.10 also states that heading 7010, HTSUS, does not include:

"[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." emphasis added.

EN 70.13, p. 936, states:

This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:

(1) Tableware or kitchen glassware, e.g. drinking glasses, goblets, tankards, decanters, infants' feeding bottles, pitchers, jugs, plates, salad bowls, sauce-bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pots, and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee mills, cheese dishes, lemon squeezers, ice-buckets.

Protestant suggests that its bottles are classifiable in subheading 7010.90.50, HTSUS, as either containers for the commercial conveyance of food, or preserve jars. We disagree.

Numerous glass articles used to hold food products within the home are not classifiable as preserve jars or containers for the commercial conveyance of goods under subheading 7010.90.50, HTSUS, but are considered to be of the class or kind of household storage articles classifiable as table/kitchenware under subheading 7013, HTSUS.

In Headquarter's ruling letter (HRL) 088020, dated January 14, 1991, we considered the classification of 12 sided glass jars that varied in height from 5 1/2" to 14" and had bale/trigger closures. We held that heading 7010, HTSUS, "provides for standard size and shape jars that are used commercially to convey, pack, or preserve foods." Because the subject jars were shaped and sized differently than jars used to commercially convey food and were used in the household as kitchen canisters to hold various types of food they were classifiable in heading 7013, HTSUS. See, HRL 087779 dated December 27, 1990, which classified a variety of glass jars, including a triangle shaped glass storage jar with a metal cover and 12 3/4" high handle and a round 12" high, glass storage jar with a cork stopper style cover in heading 7013, HTSUS; and HRL 953280, dated February 5, 1993, which held that the subject jars were similar to the ones in the rulings cited above and were shaped and sized differently than those used to commercially pack and convey food.

The brown glass flip top bottles are not principally used as the class or kind of merchandise contemplated by heading 7010, HTSUS. 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 subject bottles are not used to commercially convey food to a consumer who discards it after this use, but instead are brought and used repeatedly to store beer made in the home. In this respect they function like the enumerated articles of EN 70.13, e.g., salt cellars, decanters, vinegar cruets, etc.

Protestant cites HRL 951991, dated March 8, 1993, claiming their bottle is similar to the jar considered in that ruling. We disagree. In HRL 951991, we held that a green tinted jar with a cork top was classifiable in heading 7010, HTSUS, because it was used commercially to convey nuts to consumers for particular hotels and resorts. The present bottles are not used to commercially convey a product and therefore are not classifiable in heading 7010, HTSUS.

Furthermore, the subject jars are not classifiable as preserve jars. Various Customs rulings have confirmed the position that household articles holding different volumes than the typical preserve jars or in different forms than the typical preserve jars are classifiable in heading 7013, HTSUS. See, HRL 087727, dated September 21, 1990, which held that glass spice jars were not regarded as preserve jars classifiable in heading 7010, HTSUS, as they were not the size and shape of typical preserve jars. The subject jars are a different form than the typical Mason type preserving jar and therefore are not classifiable as such.

Finally, we note that products similar to the present bottles are the subject of pending litigation before the Court of International Trade in Italglass v. United States, (Court No. 91- 05-00369-S). Consequently, until this litigation is resolved, protests regarding the classification of this merchandise should be denied.

HOLDING:

For the foregoing reasons we find that the glass flip top bottles are household storage articles classifiable in subheading 7013.39.20, HTSUS, as table/kitchen glassware.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings

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