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HQ 957304



March 25, 1996

CLA-2 RR:TC:MM 957304 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

Port Director
U.S. Customs Service
PO Box 619050
DFW Airport, TX 75261

RE: Protests 5501-94-100242, 100306; glass jars; T.D. 96-7; HRL 545744

Dear Port Director:

The following is our response to Protests 5501-94-100242 and 5501-94-100306 concerning your actions in classifying and assessing duty on various glass jars, under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the subject articles were submitted for our review.

FACTS:

It is Customs understanding, based on the merchandise displayed in protestant's retail outlets, that the glass jars are displayed and sold empty in a section known as "storage jars". They are described as follows:

Styles 6503Y, 6501S, 6501m, and 6501

These are multi-sided bail and trigger closure jars. A series of vertical lines are molded in the jars, giving the impression that they are "paneled". They are made of clear glass and have mold seams and knurling. They range in size from « liter to 2 liters and all have a width of approximately 3 «" and graduate in height according to their volume. Paper flyers are sealed inside the 1.5 and 2 liter jars picture jelly beans and spaghetti. On both flyers " Le Jar' for preserves and storage" is printed.

Styles 6519 and 6520

These resemble typical candy or cookie jars. They are made of clear glass and have mold seams, knurling and a bail and trigger closure. They are sphere shaped and have an octagonal shaped pattern molded in the glass.

Style 6506B

This jar is made of clear glass and resembles a typical candy or cookie jar. It is sphere shaped but has had its bottom and sides flattened. It is made of clear glass and has mold seams, knurling and a bail and trigger closure.

Style 710

This jar measures approximately 3" in width and 3 «" tall and is square shaped. It is made of clear glass has mold seams, knurling, and a fired lip finish. A matching glass lid has a molded knob that serves as a handle to open and close the jar. In addition, a rubber gasket surrounds the outside bottom lip of the lid. When the lid is placed into the jar, it fits into the neck and body, creating a seal with the gasket.

Style 2027

This is a 13. 5oz. green glass bottle with a square shaped body and long narrow neck. Its lip is thick and wide. Its round opening appears to be shaped to accommodate a cork closure. It does not have mold seams or knurling. The word PEAR is molded into the bottom of the bottle.

Style 2028

This is also a green glass bottle with a square shaped body and a short narrow neck. Its lip is round but has had extra glass added to create an almond shaped spout for pouring. The round portion of the opening appears to be shaped to accommodate a cork closure. It has some knurling but no apparent mold seams. The word PEAR is molded into the bottom of the bottle.

While styles 6605, 6604, 2096, and 701 were listed in protestant's submission, no sample or description was provided.

Protestant entered the bail and trigger jars subject to protest number 5501-94-100306 under subheading 7010.90.50, HTSUS. The entries were liquidated on July 1 and 8, 1994, under subheading 7013.39.20, HTSUS. A protest was timely filed on September 29, 1994. The entry subject to protest 5501-94-100242 was entered under subheading 7010.90.50, HTSUS. It was liquidated on May 6, 1994, under subheading 7013.39.20, HTSUS. A protest was timely filed on August 4, 1994. 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: Other containers (with or without their closures )
.........................................................Free

7013.39.20 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics:Other:Valued not over $3 each..............................................28.5%

ISSUE:

Are the jars classifiable as glass containers of a kind used for the conveyance or packing of goods, or as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes?

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. GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

Protestant suggests that subheading 7010.90.50, HTSUS, which provides, in pertinent part, for containers of a kind used for the conveyance or packing of goods, describes the various glass jars, not subheading 7013.39.20, HTSUS, which provides, in pertinent part, for the class or kind "glass household articles". We disagree.

Both subheadings 7010.90.50 and 7013.39.20, HTSUS, are use provisions. There are two principal types of classification by use:

(1) according to the actual use of the imported article; and

(2) according to the use of the class or kind of goods to which the imported article belongs.

Use according to the class or kind of goods to which the imported article belongs is more prevalent in the tariff schedule. A few tariff provisions expressly state that classification is based on the use of the class or kind of goods to which the imported article belongs. In Group Italglass U.S.A. v. U.S., USITR, 17 CIT ____, Slip Op. 93-46 (Mar. 29, 1993), the CIT held that: "the language in heading 7010, "of a kind used for" explicitly invokes use as a criterion for classification and in heading 7010, principal use is controlling."

As subheadings 7010.90.50 and 7013.39.20, HTSUS, contain the language "of a kind used for" the principal use of a particular article will determine whether it belongs to one of the classes or kinds described by heading 7010, or heading 7013.

When an article is classifiable according to the use of the class or kind of goods to which it belongs, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that: in the 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 U.S. 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 other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether particular merchandise falls within a class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See: Kraft, Inc, v. U.S., USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. U.S., USITR, 14 CIT 614 (Sept. 6, 1990); and U.S. v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Because both subheadings 7010.90.50 and 7013.39.20, HTSUS, are use provisions, Additional U.S. Rule of Interpretation 1(a), HTSUS, applies. This necessitates the application of the Kraft characteristics to the subject glassware. Application of the characteristics will determine to which class or kind the article belongs; indoor decoration or packing or conveying containers. Customs is of the opinion that the physical characteristics of the subject article, as well as the manner in which it is used, prevents it from being described by subheading 7010.90.50, HTSUS. As a general rule, a glass article's physical form will indicate its principal use and thus to what class or kind it belongs. Should, however, an exception arise and an article's physical form does not indicate to what class or kind it belongs or its physical form indicates it belongs to more than one class or kind, Customs considers the other enumerated principal use criteria. For a further explanation of the class or kind "glass storage jars" See, T.D. 96-7, 61. Fed. Reg. 223,229 (January 3, 1996).

The physical characteristics, the fact that the subject articles are sold empty in the retail market as well as the fact that they are not used in the same manner as is defined for the class, indicates that the subject glass jars do not belong to the class "containers for the packing and conveying of goods" in heading 7010, HTSUS.

The subject jars as well as others with the same physical characteristics are advertised and sold empty by the importer at its retail outlets to ultimate purchasers for reuse in the home. Additionally, the jars with a bail and trigger closure and molded handle on the lid have a "rubber seal" that fits into the neck of the jar. This seal also allows for repetitive, extremely easy, opening and closing of the jar, and is a feature which clearly indicates reusability. The pouring spout on style 2028 clearly indicates reuse. In contrast, containers belonging to the class "containers of kind used for the conveyance or packing of goods" usually have a standard threaded or beaded finish.

Finally, the manner in which containers belonging to the class "containers of a kind used for the conveyance and packing of goods" are principally used, is to convey a product to the consumer who uses the product in the container and then discards the container. The glass jars at issue are not the kind of container generally used to commercially convey products. Additionally, the glass jars also serve display purposes in the home. Therefore, the jars are described by subheading 7013.39.20, HTSUS.

The various glass jars are classifiable under subheading 7013.39.20, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: other: valued not over $3 each.

With respect to the value issue raised by the protests, the entries covered by these protests are identical to an internal advice request that your office forwarded to Customs headquarters and which we responded to by issuing Headquarters Ruling Letter 545744 dated January 19, 1995, a copy of which is enclosed.

In HRL 545744, we reviewed the documents submitted with the internal advice request and determined that the evidence was insufficient to support the existence of a bona fide buying agency relationship. We explained that documentation failed to demonstrate that the importer exercised sufficient control over the alleged agent. Among the several factors that we based our determination on was that no invoices from the manufacturer to the purported agent were submitted. Accordingly, we concluded that based on the submitted information, the commissions paid to the agent were part of the price actually payable and were dutiable.

HOLDING:

The protest should be DENIED. The glass jars are classifiable under subheading 7013.39.20, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018) glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: other: valued not over $3 each with a column one duty rate of 28.5 % ad valorem.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision 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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification and

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