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HQ 955980




July 26, 1994
CLA-2 CO:R:C:M 955980 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.50

District Director
U.S. Customs Service
1000 2nd Ave.
Room 2200
Seattle, WA 98104

RE: Protest 3001-93-100580; Multi-faceted "banjo" oval flask and long neck hexagon shaped glass containers; U.S. Additional Note 1(a); EN 70.10; HRL 087359

Dear District Director:

The following is our decision regarding the request for further review of Protest 3001-93-100580, concerning your action in classifying and assessing duty on two styles of glass containers (multi-faceted "banjo" oval flask and long neck hexagon shaped sauce jars) under the Harmonized Tariff Schedule of the United States (HTSUS). A sample of each was submitted for our review.

FACTS:

The 250 ml (8oz.) glass containers in question are described as RP-202 (GC- 170) multi-faceted "banjo" oval flask and long neck hexagon shaped sauce jars. Protestant states that they are made of ordinary disposable recyclable glass, have standard glass industry finishes and were produced by an Automated Individual Section Container Forming Machine, which uses a variety of stock molds to produce the containers by pressure and blown compressed air.

He further states that the containers are sold by the importer to various distributors who then sell the containers to food packers. The food packers exclusively use the containers to package, convey, market and sell salad dressings, jams, jellies, honey, mustards, salsa and other food products. The containers, which range in price between twelve and fourteen cents each, are not sold to household consumers until filled.

The headings under consideration are as follows:

7010 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.

7013 [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).

The merchandise was entered under subheading 7010.90.50, HTSUS, as glass containers for the conveyance or packing of goods. However, the entry was liquidated on June 4, 1993, under subheading 7013.39.20, HTSUS, as glass containers for household storage. The protest was timely filed on September 1, 1993.

ISSUE:

Are the "banjo" oval flask and long neck hexagon shaped glass containers classifiable as containers for the conveyance or packing of goods?

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 pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes. Heading 7010, HTSUS, 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; preserving jars of glass; stoppers, lids and other closures, of glass.

This is a use provision and as such, according to Additional U.S. Note 1(a), HTSUS, [i]n 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 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. Therefore, the principal use of the articles at the time of importation in the United States, will determine the article's classification.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 70.10, pgs. 933-34 states, in pertinent part, 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.).

[t]hese containers remain in this heading even if they are ground, cut, sand-blasted, etched or engraved, or decorated (this applies, in particular, to certain perfume or liqueur bottles), banded, wickered or otherwise trimmed with various materials (wicker, straw, raffia, metal, etc.); they may also have tumbler-caps fitted to the neck. They may be fitted with drop measuring devices or may be graduated, provided that they are not of a kind used as laboratory glassware.

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 mould 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 screw stoppers...

In Headquarters Ruling Letter (HRL) 087359, dated August 8, 1990, Customs created a scope for the class of glass containers commercially used to convey solid or liquid products. The ruling stated, in pertinent part, that:
the key phrase in this instance is "commonly used commercially for the conveyance" of liquids. 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).

Therefore, for a glass container to be classifiable under heading 7010, HTSUS, as a container for the packing or conveying of goods, it must be part of the exchange or buying and selling of commodities and it must be used to convey a product to a consumer who then uses the product and then discards the container.

We are of the opinion that the distribution of the containers from the importer to distributors who then sell all of the containers to various food packers indicates that the containers are used to commercially convey food stuffs to a consumer. Additionally, the containers' lack of decoration, or uncommon lid indicate that they are the type of containers that, when emptied, will be discarded by the consumer. Finally, the containers are made of ordinary glass by pressure in a mold, have a large opening, a short neck, and a flange. Therefore, the containers are classifiable in heading 7010, HTSUS, specifically subheading 7010.90.50, HTSUS.

HOLDING:

The "banjo" oval flask and long necked hexagon shaped sauce jars are classifiable in subheading 7010.90.50, HTSUS, as containers for the conveyance or packing of goods.

The protest should be granted. 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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