HQ 959044 - Protest 0712-94-101251; Glass ceramic cap and bail and trigger closure bottles; T.D. 96-7, 61 Fed. Reg. 223,229 (January 3, 1996); Group Italglass v. U.S., G. Heilman Brewing Co. v. U.S., U.S. v. Carborundum, Kraft Inc. v. U.S.; HRL 957960 - United States International Trade Commision Rulings

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HQ 959044

July 24, 1996

CLA-2 RR:TC:MM 959044 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39

Port Director
U.S. Customs Service
35 West Service Road
Champlain, NY 12919

RE: Protest 0712-94-101251; Glass ceramic cap and bail and trigger closure bottles; T.D. 96-7, 61 Fed. Reg. 223,229 (January 3, 1996); Group Italglass v. U.S., G. Heilman Brewing Co. v. U.S., U.S. v. Carborundum, Kraft Inc. v. U.S.; HRL 957960

Dear Port Director:

The following is our response to Protest 0712-94-101251 concerning your actions in classifying and assessing duty on ceramic cap bail and trigger closure bottles , under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the two jars at issue were submitted for our review. In preparing this ruling, consideration was given to supplemental submissions received pursuant to a February 29, 1996, meeting between protestant and Edward Symczak, Supervisory Import Specialist (Boston).

FACTS:

The protested models are referred to by protestant as "Siphon" and "Palla". Both have ceramic cap closures with wire bails and are sold in a variety of sizes. Palla has a ball-shaped body which tapers into a long, narrow neck. Siphon has a rounded, oblong shaped body, a portion of which is molded into a handle. At the top of the handle, the body tapers into a short, wide, neck.

The protestant, Chelsea Bottle Company, is a wholesale distributor of glass and plastic containers and jars. According to the submissions, their customers include, but are not limited to, food, chemical, health/ beauty aid and pharmaceutical packers. Protestant states that the subject jars are used by one of their customers to package maple syrup.

A June 1993, article entitled Maple Syrup Gets New Glamor from Glass which appeared in Packaging Digest magazine was included in protestant's submission. In that article, protestant's customer remarks that tins and plastic jugs are the "traditional containers that his company has filled and sold for years" and that "...[t]he bottles stimulate people to try the products. Later, they may buy our products in a less expensive package. We're confident our product is exceptional, so we're looking for exposure in stores that might already have a conventional package." Additionally, the article states that protestant's customer "points out that these bottles are far more than just packages. He calls them "reusable" glass because they're very similar to what many people buy empty for decorative purposes. That's why he's confident these bottles are rarely discarded after the contents have been consumed."

Finally, protestant asserts the exact same jars are being imported by their Canadian competitors and classified by the Canadian customs administration (Revenue Canada) as containers of a kind used for the conveyance or packing of goods. Once filled with maple syrup in Canada, the entire product, jars and syrup, are being imported into the United States and competing with the U.S. produced syrup.

Protestant entered the ceramic cap bail and trigger closure jars under heading 7010, HTSUS. The entries were liquidated on August 28, 1994, under heading 7013, HTSUS. A protest was timely filed on November 9, 1994. 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 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):

ISSUE:

Are the ceramic cap bail and trigger closure 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. Protestant suggests that heading 7010, HTSUS, which provides, in pertinent part, for containers of a kind used for the conveyance or packing of goods, describes the jars. We disagree.

Both headings 7010 and 7013, 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 headings 7010 and 7013 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 headings 7010 and 7013 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 articles belong; glass storage articles or packing or conveying containers. 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 characteristics of the subject articles, as well as the expectations of the ultimate purchaser, and their environment of sale, prevents the jars from being described by heading 7010. For a detailed explanation of the indicative characteristics of the classes "glass containers of a kind used for the conveyance and packing of goods" and "glass storage articles" see, T.D. 96-7, 61 Fed. Reg. 223,229 (January 3, 1996).

There are several distinguishing features between the "containing" articles of heading 7010 and the jars in this case. The protestant's customer states that tins and plastic jugs, not glass ceramic cap bail and trigger closure bottles, are the containers traditionally or usually used to convey and package maple syrup. The jars are of a dimension similar to, and have the capacity to hold the sort of items typically stored or transported in jars described by the class or kind " glass storage jars". The subject articles, while not by this importer, are nonetheless sold empty in the retail market (e.g: Crate and Barrel, Lechters, etc.). Protestant's customer indicates in the June 1993 article that the ultimate purchaser chooses the syrup in the glass jars because of the glass jars' storage and decorative characteristics, not necessarily because of the syrup. Finally, protestant's customer indicates that the bottles are far more than "just" packages. He calls them "reusable glass because they're very similar to what many people buy empty for decorative purposes. [That's why he's] confident these bottles are rarely discarded after the contents have been consumed" (italics added).

While the jars do have knurling and mold seams, these physical characteristics indicate that the jars may have commercial conveyance and packing as one of their uses. However, as evidenced by the information above, these jars are not the usual commercial syrup container, are sold empty to ultimate purchasers and are considered "much more than packages" by the bottler. This indicates that the jars are principally used as glass storage articles. As such, they are classifiable in heading 7013.

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.

Subheading 7013.39 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): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: Other, and describes the subject articles. Classification to the 8 digit level will depend upon the value of the jars.

Finally, we note protestant asserts that the exact same jars are being imported by their Canadian competitors and classified by Revenue Canada as containers of a kind used for the conveyance or packing of goods and that maple syrup bottled in Canada in the same jars is then imported without duty charged into the U.S. to compete against the American made syrup. Protestant has not provided any evidence which indicates Revenue Canada has implemented the alleged position. Even if such evidence exists, U.S. Customs would not be bound by the Revenue Canada practice. See: T.D. 89-80 (1989), 54 FR 35127; Sturm, Ruth, Customs Law and Administration, Vol. 2., ?50.4, p. 24. Bottles imported together with syrup, or any other article is generally considered a composite good with the bottled article providing the essential character. Therefore, it is possible that the composite good is classifiable as "syrup". However, see Headquarters Ruling Letter 957960 dated February 5, 1996, which held that foodstuffs may not impart the essential character of composite goods imported in glass receptacles belonging to the class "house hold storage articles". See also, ? 516, Tariff Act of 1930, as amended (19 U.S.C. 1516), and Part 175, Customs Regulations (19 CFR Part 175), which provides a procedure for domestic interested parties to discover the classification of imported articles similar to the class or kind of merchandise they produce and to contest the classification if they believe the determination is incorrect.

HOLDING:

The protest should be DENIED. The glass jars are classifiable under subheading 7013.39, 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. Classification to the 8 digit level will depend upon the value of the jars.

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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