HQ 958477 - DD 813644; Brown glass bail and trigger closure bottles; Additional U.S. Note 1(a); EN 70.10; Group Italglass U.S.A. v. U.S., Lenox Collections v. U.S., Kraft, Inc, v. U.S., G. Heilman Brewing Co. v. U.S., U.S. v. Carborundum Company; T.D. 96-7; HRLs 954792, 087359. - United States International Trade Commision Rulings

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HQ 958477

February 14, 1996

CLA RR:TC:MM 958477 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.50

Mr. Lars Seyfrid
LB Plus, Inc.
436-B Taylor Ave
Alameda, CA 94501

RE: DD 813644; Brown glass bail and trigger closure bottles; Additional U.S. Note 1(a); EN 70.10; Group Italglass U.S.A. v. U.S., Lenox Collections v. U.S., Kraft, Inc, v. U.S., G. Heilman Brewing Co. v. U.S., U.S. v. Carborundum Company; T.D. 96-7; HRLs 954792, 087359.

Dear Mr. Seyfrid:

The is in response to your letter of September 13, 1995, requesting reconsideration of DD 813644 dated September 5, 1995, in which the District Director of Customs, Ogdensburg, NY, classified glass bail and trigger closure (flip top) brown bottles under subheading 7013.39.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Descriptive literature was submitted for our review.

FACTS:

The brown glass bottles, referred to as "Bierflasche", have a porcelain or plastic stopper attached to a metal snap closure. They hold either 500 or 1000 ml, have cylindrical shaped bodies and gradually rounded shoulders which taper to a neck. The neck is heavily reinforced to accommodate a wire bail closure. The porcelain or plastic stopper compresses a small rubber seal to the mouth of the bottle when the wire bail closure is in a closed position.

You state that the bottle is primarily used by micro-breweries which fill them with beer for sale to the public. They serve no use in a household nor do they have any use as a decorative item. When purchased filled, the bottles require a substantial deposit which is assessed to encourage the bottles return for reuse by the micro breweries.
ISSUE:

Whether the bail and trigger closure brown glass bottles are classifiable as 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:

Classification of merchandise under the HTSUS is in accordance with 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. 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..........................................................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: other: valued not over $3 each....................................28.5%

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.

In understanding the language of the HTSUS, Customs consults the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). The ENs, although not dispositive, provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes that they should be consulted for guidance in determining the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 70.10, pg. 933-934, states, in pertinent part, that:

This 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:

(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.

These articles, formerly produced by blowing, are now almost invariably manufactured by machines which automatically feed molten glass into moulds where the finished articles are formed by the action of compressed air. They are usually made of ordinary glass (colourless or coloured) although some bottles (e.g., for perfumes) may be made of lead crystal, and certain large carboys are made of fused quartz or other fused silica...

In Headquarters Ruling Letter (HRL) 087359, dated August 8, 1990, Customs explained the phrase "commercially used to convey", as used in the ENs, when referring to 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).

Based on this analysis, the scope of the class "containers used for the conveyance or packing of goods" includes glass articles which are part of the exchange or buying and selling of commodities, and can be used to convey or pack a product to a consumer who then uses the product and discards the container.

Subheading 7013.39 provides for the class "glassware of a kind used for table or kitchen purposes". The scope of this class includes articles principally used to hold or store other articles in the home. Among these articles, certain glass storage jars may be principally used in this fashion.

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. United States, USITR, 17 CIT 226, the court 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 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 ascertain how "bail and trigger closure brown glass bottles" are principally used so we can determine whether they belong to the class "glassware of a kind used for the conveyance or packing of goods" or "glassware of a kind used for table or kitchen purposes".

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: Lenox Collections v. United States, No. 96-30 slip op. (CIT February 2, 1996), 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.

For a further discussion of the scope of "containers used for the conveyance or packing of goods" and "glassware of a kind used for table or kitchen purposes: glass storage articles" as well as a discussion of the principal use factors applied to merchandise to determine whether it belongs to either of the classes, see T.D. 96-7, published in the Federal Register dated January 3, 1996, (61. Fed. Reg. 223,229) and the Customs Bulletin dated January 17, 1996, (hereinafter T.D. 96-7).

In Lenox, the court ruled on the classification of a set of small porcelain containers called the "Spice Village". Each elaborately decorated container was shaped like a Victorian house and came with a wood rack in which the articles could be displayed. Customs had classified the articles in the class "kitchenware". The importer believed they were classifiable in the class "ornamental articles". Although, the set was advertised as functional spice jars, and each had a named spice on the outside and a fitted top to keep spices fresh, the court referred to Additional U.S. Rule of Interpretation 1(a) and the need to focus on the principal use of the class or kind of goods to which an import belonged, not the principal use of the specific import. To determine the class or kind of goods to which the import belonged, the court examined the factors set forth in the Kraft and Carborundum line of cases.

Although the subject containers were capable of holding spices, the court found that the physical characteristics suggested that they were principally used for decorative purposes. According to the court, the containers failed to hold spices as efficiently as their plainer counter parts which have a grip area and a shaker top Based on the significant difference in price between a plainer spice jar set and the Spice Village, the court stated purchasers pay more for the Spice Village because their ultimate expectation is to use them to adorn their homes. The court found that the channels of trade in which the merchandise moved failed to indicate whether the articles belonged to the class "kitchenware" or "ornamental articles". As to the environment of sale, although the court recognized that the ads describe the Spice Village as both decorative and functional, the court found that the ads stressed the decorative nature of the articles. Finally, the court found that because surveys indicated that 70% of the containers were used entirely or primarily for decorative display, the Spice Village was used principally for decorative purposes. Accordingly, even though almost 30% of the Spice Village was used entirely or principally in the kitchen for cooking, the principal use of the class or kind of goods to which it belongs was "ornamental articles".

As the court did in the Lenox, Kraft and Carborundum line of cases and as Customs directed in T.D. 96-7, we must examine the principal use factors to determine whether the subject bottles belong to the class "containers of a kind used for the conveyance or packing of goods" or "glassware of a kind used for table or kitchen purposes: glass storage articles". 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 brown glass bottles, as well as the general expectation of the ultimate purchasers, and the usage of the merchandise, indicates they are described by subheading 7010.90.50, HTSUS. The subject bottles' glass is somewhat thicker and it has a bail and trigger closure, both of which are not typical of bottles generally used to commercially convey beer. Typically a bottle used to commercially convey beer has a crimped or screw top on either a threaded or thick lipped opening. However, the shape, shouldered body and long neck, is a shape associated with bottles generally used to commercially convey beverages. This shape gives the bottle the overall physical appearance of a bottle used to commercial convey beverages. Additionally, the ultimate purchaser buys the container to consume the beer and returns the bottle so that it may again be used for that same purpose. No evidence was provided indicating the environment of sale, the channel of trade for the bottles or that these brown glass bail and trigger closure bottles are primarily used for anything but the commercial conveyance or packing of beer.

We note that in H.L. 954792 dated November 24, 1993, we held that similar bail and trigger closure brown glass bottles where classified as household articles of glass under subheading 7013.39.20, HTSUS. T.D. 96-7, specifically revoked HRL 954792 because the principles articulated in the ruling were not consistent with those espoused in T.D. 96-7. In addition to specific ruling revocations, T.D. 96-7 states that any additional rulings not enumerated, but inconsistent with the principles expressed in T.D. 96-7, are considered revoked by T.D. 96-7's publication. As the principles espoused in DD 813644 are inconsistent with T.D. 96-7, it is considered revoked.

However, based on the Lenox, Kraft and Carborundum line of cases and Customs guidelines in T.D. 96-7, we are now of the opinion that the brown glass bail and trigger closure bottles are of the class "glassware of a kind used for the conveyance or packing of goods" under subheading 7010.90.50, HTSUS.

HOLDING:

The bail and trigger closure glass jars are classified under subheading 7010.90.50, HTSUS, as 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 with a free column one rate of duty.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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