HQ 957920 - NYRL 808058 affirmed; multi-purpose glass jars; principal use; Additional U.S. Rule of Interpretation 1(a); Group Italglass U.S.A. v. U.S., Kraft, Inc, v. U.S., G. Heilman Brewing Co. v. U.S., and U.S. v. Carborundum Company; EN 7010 - United States International Trade Commision Rulings

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HQ 957920

December 20, 1996

CLA-2 RR:TC:MM 957920 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

Ms. Marjorie M. Shostak
Mr. Scott E. Rosenow
Stein, Shostak, Shostak and O'Hara
1620 L Street, N.W. Suite 807
Washington, D.C. 20036

RE: NYRL 808058 affirmed; multi-purpose glass jars; principal use; Additional U.S. Rule of Interpretation 1(a); Group Italglass U.S.A. v. U.S., Kraft, Inc, v. U.S., G. Heilman Brewing Co. v. U.S., and U.S. v. Carborundum Company; EN 7010

Dear Ms. Shostak and Mr. Rosenow:

This is in reference to your letter of April 28, 1995 and additional submission of November 7, 1995, on behalf of Riekes Distributing Company, requesting reconsideration of New York Ruling Letter (NYRL) 808058 dated March 29, 1995, in which you were advised of the classification of a series of multi-purpose glass jars under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and pictures of the subject articles were provided at an August 8, 1995, meeting.

In NYRL 808058, the subject articles were classified under subheading 7013.99.50, HTSUS, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...other glassware... other... other... valued over $0.30 but not over $3 each. You believe that they could be considered containers of a kind used for the conveyance and packing of goods, classifiable under subheading 7010.90.50, HTSUS, or, in the alternative, under subheading 9405.50.40, HTSUS, as non-electric lamps and lighting fittings.

FACTS:

The subject octagon shaped jars are made of clear high quality glass. The matching glass lids have molded knobs that serve as handles to open and close the jars. In addition, a plastic seal surrounds the outside bottom lip of the lid. The bottom lip portion fits into the necks and bodies of the jars creating an air tight closure. The jars' necks measure approximately ¬" and have a fired lip finish. The body provides of the jars' total height. The bodies rest on pedestals molded into the bottom of the jars. The necks and pedestals have the same diameter. The bodies' diameters are slightly larger than the neck and pedestals. The jars have no apparent mold seams, knurling, or finish. Four models are under consideration.

Model No. Capacity Height Cost FOB
Thailand

B3912 10.05 fl.oz 2.68" 38 each
B3918 15.30 fl.oz 3.92" 45 each
B3924 19.95 fl.oz 4.88" 60 each
B3927 22.50 fl.oz 5.60" 71 each

After importation, they will be used for a variety of purposes including the sale and display in the home of candles, nuts, candy, and potpourri and will be sold empty in a variety of craft stores.

ISSUE:

Are the multi-purpose glass jars classified as other glass containers for the conveyance or packing of goods under subheading 7010.90.50, HTSUS, as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under subheading 7013.99.50, HTSUS, or as non-electrical lamps and lighting fittings under subheading 9405.50.40, HTSUS?

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 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. 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

7013.99.50 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)...Other glassware...Other...Other...Valued over $0.30 but not over $3 each.................30%

9405.50.40 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included...Non-electrical lamps and lighting fittings...Other.. .Other.
.....................................................................................................................7.3%

Both subheadings 7010.90.50 and 7013.99.50, 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 7013.99.50, 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 7013.99.50, 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.

Heading 7010, HTSUS, provides for bottles, vials and other containers of glass which are of a kind used commercially for the conveyance or packing of goods. Explanatory Note (EN) 70.10 of the Harmonized Commodity Description and Coding System (HCDCS) states that heading 7010 "covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.)." HCDCS, p. 933. The types of containers covered by this heading include:

(A) Carboys, demijohns, bottles (including syphon vases), phials and similar containers, of all shapes and sizes, used as containers for chemical products (acids, etc.), beverages, oils, meat extracts, perfumery preparations, pharmaceutical products, inks, glues, etc.

(B) Jars, pots and similar containers for the conveyance or packing of certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.), cosmetic or toilet preparations (face creams, hair lotions, etc.), pharmaceutical products (ointments, etc.), polishes, cleaning preparations, etc.

(C) Ampoules, usually obtained from a drawn glass tube, and intended to serve, after sealing, as containers for serums or other pharmaceutical products, or for liquid fuels (e.g., ampoules of petrol for cigarette lighters), chemical products, etc.

(D) Tubular containers and similar containers generally obtained from lamp-worked glass tubes or by blowing, for the conveyance or packing of pharmaceutical products or similar uses.

HCDCS, p. 933- 934. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (1989).

The key phrase in this instance is "commonly used commercially for the conveyance" of solid products. 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).

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 are octagonal shaped have, no evident mold seams , no knurling on the bottom, a fired lip finish rather than a standard conveyance finish, lids with knob handles molded in them and a "plastic seal" that fits into the neck of the jar and seals in the decorative smell of candles or potpourri. This seal also allows for repetitive, extremely easy, opening and closing of the jar, and is a feature which clearly indicates reusability. In contrast, containers belonging to this class usually have evident mold seams, knurling on the bottom of the container, a threaded or beaded finish, and lids without handles molded into them.

The manner in which containers belonging to the class "containers of a kind used for the conveyance and packing of goods" in heading 7010, HTSUS, 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 containers at issue are not of the class or kind of glassware principally used to commercially convey candle wax, potpourri, candy or other food products. When filled with a wax and wick after importation, the subject articles are necessary for the consumer to use the product, candle wax. In use, the glass jars support the candle wax. The glass jars are not merely used as containers to convey the candle wax to the consumer and then discarded but, additionally, they serve a decorative purpose. Moreover, they serve those same decorative, display, and disbursing purposes when filled with candy and potpourri. Finally, the subject jars are sold empty at retail outlets for ultimate purchasers to use and reuse in the home.

We are of the opinion that the subject articles are principally used as the class or kind of merchandise, namely general decorative glass articles, contemplated by subheading 7013.99.50, HTSUS. Their octagonal shape, "seal" , knobbed handle, and smooth glass all indicate their decorative as well as their reusable nature. Additionally, as is demonstrated by the facts, a variety of articles can be stored for reuse in them.

You have suggested subheading 9405.50.40, HTSUS, as an alternative classification. As your additional submission of November 7, 1995, and your original May 7, 1995, submission requesting the New York Ruling Letter clearly indicate, these glass jars are not solely used to hold a candle, but as a general use decorative jar. Therefore, they are not described by subheading 9405.50.40, HTSUS.

HOLDING:

The glass jars are classified under subheading 7013.99.50, HTSUS, as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, with a column one rate of duty of 30 percent ad valorem.

NYRL 808058 is affirmed.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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