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HQ 958095



November 6, 1995

CLA-2 R:C:M 958095 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.50

Port Director
U.S. Customs Service
1000 2nd Avenue
Seattle, WA 98104-1049

RE: Protest 3001-95-100367; bail and trigger glass jars; principal use; Additional U.S. Rule of Interpretation 1(a); EN 70.10

Dear Port Director:

The following is our decision regarding the request for further review of Protest 3001-95-100367 concerning your action in classifying and assessing duty on bail and trigger closure glass jars under the Harmonized Tariff Schedule of the United States (HTSUS). A picture of the subject jars was included for examination.

FACTS:

Protestant imports empty 12 and 24 oz. round clear glass jars with bail and trigger closure systems. The closure system consists of a metal loop clamp placed around the neck of the jar, a rubber gasket placed on the inside lip of the lid, and a wire fastener placed on the outside top rim of the lid. The jar is closed by inserting the wire lid fastener into the metal loop clamp and pressing down on the clamp. This locks the lid in place. According to protestant, it is an old-fashioned method of capping which keeps moisture and smells out of the jar which the foodstuffs packed therein might otherwise absorb. The seal is imperfect and therefore, cannot preserve foodstuffs for long term. Protestant claims that this packaging is typically used for special customer orders or sales situations where fancier packaging is appropriate. Cost of the jar at importation is .85ยข.

After importation, the glass jar will be filled with individually twist wrapped mint chocolate truffles for mass market retailing. Protestant also sells the candies packaged in paper box containers. Candies packaged both ways are sold in pallet and truck-load quantities to retailers.

The protest was timely filed on May 19,1995, for entries liquidated on May 3, 1995. The entries were liquidated under subheading 7013.99.50, HTSUS, as other articles of glass. Protestant claims the articles are classifiable under subheading 7010.90.50, HTSUS, as containers of a kind used for the conveyance or packing of goods. 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%

ISSUE:

Are the bail and trigger closure glass jars classified as other glass containers of a kind used for the conveyance or packing of goods under subheading 7010.90.50, HTSUS, or as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under subheading 7013.99.50, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). 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, HTSUS, 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.

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. United States, USITR, 17 CIT 226, 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 of goods 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 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 other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind. Therefore, we must determine what is the principal use of the entire class "bail and trigger closure jars".

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. United States, USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States 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 of goods the article belongs; indoor decoration or containers used for conveyance or packing.

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. Customs is of the opinion that the physical form of bail and trigger closure jars, as well as the manner in which they principally used, prevents the subject article from being described by subheading 7010.90.50, HTSUS.

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, ps. 933- 934. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23,1989). 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).

Protestant argues that based on the characteristics listed as indicative of the principal use for classes of heading 7010 and 7013 proposed in the Customs Federal Register notice entitled "Proposed Position for the Tariff Classification of Glassware" (59 FR 51659) on October 12, 1994, its particular use of the bail and trigger closure jar indicates that all bail and trigger closure jars are principally used to commercially convey goods and therefore, are classifiable under heading 7010. We disagree. Customs has determined that protestant's claimed used of the bail and trigger closure jars, of conveying or packing candy is not the principal use for all bail and trigger closure jars. Their physical form as well as the fact that bail and trigger jars closure jars are sold, in large quantities, empty in the retail market, indicates that the subject glass jars do not belong to the class "containers for the packing and conveyance of goods" in heading 7010.

Based on an examination of the picture submitted, and numerous similar samples, the subject jars have no mold seams, no knurling on the bottom and a bail and trigger closure system. In contrast, containers belonging to the class, containers for the conveyance or packing of goods, usually have evident mold seams, knurling on the bottom of the containers and a threaded or beaded finish. Furthermore, as discussed in the Federal Register notice cited by protestant, the subject jars do not provide an adequate seal to commercially convey various foodstuffs.

Protestant argues that any "reuse" of the jars would be a fugitive use. We disagree. The physical form as well as the manner in which the article is sold indicates otherwise. The bail and trigger closure and the seal it provides allows for repetitive, extremely easy, opening and closing of the jar; a physical feature which clearly indicates reusability. The subject glass jars are not of the class or kind of glassware principally used to commercially convey candy or other food products. Rather, their principal use is to serve decorative (old-fashioned), display, and distribution purposes when filled with candy. In general, glassware in not the principal form used to commercially convey candy. Rather, as was indicated in protestant's submission, candy is packaged and conveyed in boxes. Not only does Customs believe that paper box packaging is the most common form of packing and conveying candy, but the boxes also offer a form of "refill" for the purchased jar. We believe that when faced with both packaging choices, the ultimate consumer who chooses the candy in the jar is choosing it because of the reusability of the jar.

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. The inadequacy of the bail and trigger closure system as well as a lack of commercial indicators such as mold seams, knurling, etc. indicate their decorative and reusable nature.

HOLDING:

The bail and trigger closure 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% ad valorem.

The protest should be DENIED. 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, with the Customs Form 19, 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 Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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