HQ 959942 - Protest 2809-96-101231; various glass containers; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household storage articles; principal use; eo nominee; 7010; 7013; EN 70.10; EN 70.13; U.S. Additional Note 1(a); T.D. 96-7; Myers v. United States, CIT Slip Op. 97-75; Group Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993); Commercial Aluminum Cookware Co. v. United States, 938 F. Supp. 875 (CIT 1996); Kraft, Inc, v. United States, 16 CIT 483 (1992); G. Heilman Brewing Co. v. United States, 14 CIT 614 (1990); United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976); HRLs 959639; 959941; untimely protest; 19 U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e); Myers v. United States, CIT Slip Op. 97-75; Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463 (1989), rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991) - United States International Trade Commision Rulings

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HQ 959942

October 27, 1997

CLA-2 RR:CR:GC 959942 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.92.50; 7013.39.20

Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105

RE: Protest 2809-96-101231; various glass containers; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household storage articles; principal use; eo nominee; 7010; 7013; EN 70.10; EN 70.13; U.S. Additional Note 1(a); T.D. 96-7; Myers v. United States, CIT Slip Op. 97-75; Group Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993); Commercial Aluminum Cookware Co. v. United States, 938 F. Supp. 875 (CIT 1996); Kraft, Inc, v. United States, 16 CIT 483 (1992); G. Heilman Brewing Co. v. United States, 14 CIT 614 (1990); United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976); HRLs 959639; 959941; untimely protest; 19 U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e); Myers v. United States, CIT Slip Op. 97-75; Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463 (1989), rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991)

Dear Port Director:

This is in response to Protest 2809-96-101231, which pertains to the tariff classification of certain articles of glass under the Harmonized Tariff Schedule of the United States (HTSUS). Pictorial representations were submitted for our review.

FACTS:

The merchandise consists of the following glassware:

Item B3589 (Sole 500 [ml.]), a tall, narrow (elongated) article with a cylindrical shape the diameter of which, at the top of the cylindrical portion, gradually diminishes to a neck, a long narrow neck, small opening, and a rim; and

Item 05179 (Bellissima 500 [ml.]), a tall, narrow (elongated) article with a cylindrical shape (the cylindrical portion of this item is longer than that of item B3589) the diameter of which, at the top of the cylindrical portion, diminishes to a neck, a long narrow neck, small opening, and a rim.

Glassware under the two December 28, 1995, entries and the January 4, 1996, entries is not described because the protest was untimely as to those entries (see below) (for future reference, classification of items in the untimely protested entries should be in accordance with HRLs 959639, dated October 21, 1997, HRL 959941, dated October 27, 1996, and this ruling). Information is available only on the described glassware; based on the entry documentation in the file for one of the December 28, 1995 entries (... 490-2), other glassware may have been imported under the protested entries and may have been liquidated under subheading 7010.91.50 or 7010.92.50, HTSUS, free of duty; this ruling does not address whether the classification of such items was correct.

Four entries, of December 28, 1995, through January 7, 1996, are included in the protest. The first three entries (two of December 28, 1995, and one of January 4, 1996) were liquidated on June 14, 1996, and the other entry (of January 7, 1996) was liquidated on June 21, 1996.

On September 13, 1996, the importer protested, stating in block 9 of the protest form ("DETAILED REASONS FOR PROTEST AND/OR FURTHER REVIEW"):

We respectfully request a full duty refund for all glassware classified at 7013. I request all merchandise classified at 7013 be reclassified at 7010/duty free. ...

The Customs Protest and Summons Information Report (Customs Form 6445) prepared by the Import Specialist states that the importer's position is that:

No imported bottles are dutiable and all bottles are classifiable as 7010.92.50/Free. Importer claims that all bottles are imported empty and sold to customers that fill them. ...

Further review was requested and granted.

The competing subheadings, as of the time under consideration, are as follows:

7010.92.50: [c]arboys, 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: ... [o]ther, of a capacity: ... [e]xceeding 0.33 liter but not exceeding 1 liter:
...[o]ther containers (with or without their closures).

Goods classifiable under subheading 7010.92.50 receive duty-free treatment.

7013.39.20: [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): ... [g]lassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: ... [o]ther: ... [o]ther: [v]alued not over $3 each.

The 1996 general column one rate of duty for goods classifiable under subheading 7013.39.20 is 28.5% ad valorem.

ISSUE:

Was the protest timely and, if timely, is the glassware classifiable as containers of a kind used for the conveyance or packing of goods, preserving jars of glass, or glassware of a kind used for decoration or similar purposes?

LAW AND ANALYSIS:

Initially, we note that as to the two December 28, 1995, entries and the January 4, 1996, entry, the protest was untimely (i.e., protest must be filed within 90 days after but not before the notice of liquidation (19 U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e)); notice of liquidation was dated June 14, 1996, and the protest was filed September 13, 1996, 91 days after the notice of liquidation (16 days in June, 31 days in July, 31 days in August, and 13 days in September)). For an example of the judicial treatment of a protest filed 1 day after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991). The protest must be denied as to these entries. As to the January 7, 1996, entry (liquidated June 21, 1996), the protest was timely (see above) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

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.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

The provision for preserving jars of glass in heading 7010 is an eo nomine provision (Myers v. United States, CIT Slip Op. 97-75, decided June 17, 1997). The provision in heading 7010 for containers "of a kind used" for the conveyance or packing of goods and the provision in heading 7013 for glassware "of a kind used" for table or kitchen purposes are "principal use" provisions (Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993)). Merchandise which is properly classifiable under heading 7010 cannot be classified under heading 7013, because of the specific parenthetical provision to that effect in heading 7013 (Myers, supra).

The provision for preserving jars of glass in heading 7010 was considered in Myers, supra. That case concerned jars with wire bail and rubber ring closure systems. The Court found the jars to be classifiable under the provision for "preserving jars of glass" in heading 7010. The Court concluded that:

The three fundamental feature[s] which distinguish preserving' jars from packing and conveyance' jars and storage' jars are: (1) the thickness of the glass in the walls of the jars; (2) the jar's ability to form and maintain a hermetic seal; and (3) the jar's potential for reuse as a canning or preserving jar.

In this case, the glass containers have no ability to form and maintain a hermetic seal, nor is there any indication that the containers have potential for reuse as canning or preserving jars (the pictorial representations are not clear enough to indicate whether the containers are composed of thick glass). The containers in this case are not "preserving jars of glass" and may not be classified under that provision.

The other competing provisions (containers of glass of a kind used for the conveyance or packing of goods in heading 7010 and glassware of a kind used for table or kitchen decoration or similar purposes in heading 7013) are "use" provisions (see above). If an article is classifiable according to the use of the class or kind of goods to which it belongs, as is true of these provisions, 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 in the United States at the time of importation determines whether it is classifiable within a particular class or kind (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 CFR 10.131 - 10.139); as stated above, the competing provisions are principal use provisions, not actual use provisions).

The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, 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, 16 CIT 483 (1992), G. Heilman Brewing Co. v. United States, 14 CIT 614 (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 (1976).)

In applying Additional U.S. Rule of Interpretation 1(a) and the above cases to heading 7010, it is Customs position that, as a general rule, a glass article's physical form will indicate its principal use and thus to what class or kind it belongs. However, should an exception arise so that 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.

The EN for heading 7010 is helpful in this analysis. EN 70.10 states, in pertinent part: "This heading covers all glass containers of the kind commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). ..." The key phrase in the quoted material is "commonly used commercially for the conveyance or packing" of liquids or solid products. The root word of "commercially" is commerce which is described as the exchange or buying and selling of commodities. The Random House Dictionary of the English Language (1973), p. 295, and Webster's New World Dictionary (3rd Coll. Ed.) (1988), p. 280. The root word of "conveyance" is convey which is described as to carry, bring or take from one place to another; transport; bear. Supra, at p. 320 and p. 305, respectively.

Based on the above authorities Customs issued Treasury Decision (T.D.) 96-7 which, among other things, adopted certain criteria as indicative, but not conclusive, of whether a particular glass article qualifies as part of the class "containers of glass of a kind used for the conveyance or packing of goods" in heading 7010 or the class "glassware of a kind used for table or kitchen purposes; glass storage articles" in heading 7013. According to the "EFFECTIVE DATE" section of T.D. 96-7, "[a]ny changes in tariff classification resulting from the implementation of these guidelines and any revocation of inconsistent rulings will be effective regarding merchandise entered for consumption or withdrawn from a warehouse for consumption on or after February 2, 1996." The protested entries were prior to February 2, 1996. However, insofar as the criteria described in T.D. 96-7 for indicating whether glassware qualifies as part of the class of containers used for the conveyance or packing of goods or for table or kitchen purposes as glass storage articles are concerned, those criteria were compiled from Court cases, ENs, and rulings in existence prior to the effective date of the T.D. (e.g., the criteria in the T.D. for glassware of a kind used for table or kitchen purposes; glass storage articles, were used in HRLs 953952, dated September 21, 1994, and 956470, dated September 28, 1994). Therefore, the criteria in T.D. 96-7 are relevant for determining the classification of the glassware under consideration.

The criteria in T.D. 96-7 for containers of glass of a kind used for the conveyance or packing of goods in heading 7010 are:

1. [The container] [g]enerally [has] a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap, [is] made of ordinary glass (colourless or coloured) and [is] manufactured by machines which automatically feed molten glass into moulds where the finished articles are formed by the action of compressed air;

2. The ultimate purchaser's primary expectation is to discard/recycle the container after the conveyed or packed goods are used;

3. [The container is] [s]old from the importer to a wholesaler/distributor who then packs the container with goods;

4. [The container is] [s]old in an environment of sale that features the goods packed in the container and not the jar itself;

5. [The container is] [u]sed to commercially convey foodstuffs, beverages, oils, meat extracts, etc.;

6. [The container is] [c]apable of being used in the hot packing process; and

7. [The container is] [r]ecognized in the trade as used primarily to pack and convey goods to a consumer who then discards the container after this initial use.

Applicability of the foregoing criteria to the merchandise is as follows. Both articles appear to be manufactured by automatic machines from ordinary glass. Both articles are elongated bottles with small openings, long necks and, although they have rims, are not configured to "hold" a lid or cap, other than a cork or similar closure. An ultimate purchaser's primary expectation would not be to discard or recycle the articles after the conveyed or packed goods, if any, are used, as evidenced by the fact that each item is configured only for a cork or similar lid, and such lids allow for repetitive, extremely easy, opening and closing, a feature indicating reusability, and the elongated shape of the bottles. The protestant states that the containers are sold from the importer to a customer who fills them (as emphasized above, the competing tariff provisions are principal use provisions, not actual use provisions). There is no evidence as to whether the containers are emphasized over the goods packed in them, but the physical form of the articles (see above) indicates that this is so. The criterion of commercial use to convey foodstuffs, etc., is addressed by the other criteria (see above and below). There is no evidence that the containers are capable of being used in the hot packing process. The physical form of the articles (see above) indicates that rather than using the containers to pack and convey goods to a consumer who discards them after their initial use, the containers, and not their contents, are emphasized to customers. On the basis of these criteria, we conclude that these articles are not principally used for the conveyance or packing of goods. Classification under heading 7010 is precluded.

Both articles are classified under heading 7013. The protestant provides no evidence regarding the principal use of the items, but many of the criteria used in the analysis of the applicability of heading 7010 support principal use as household storage articles (see above, e.g., lids allow for repetitive, extremely easy, opening and closing; when sold filled, the physical form shows that the container, not the contents, is emphasized; see also the criteria stated in T.D. 96-7 for glassware of a kind used for table or kitchen purposes (glass storage articles), and EN 70.13, which specifically enumerates as exemplars of table or kitchen glassware under this heading, "decanters" and "jugs"). Accordingly, items B3589 and 05179 are principally used to store food material and are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics, in subheading 7013.39.20, HTSUS.

HOLDINGS:

(1) The protest was untimely as to the two December 28, 1995, entries and the January 4, 1996 entry (19 U.S.C.

(2) Items B3589 and 05179 are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes, in subheading 7013.39.20, HTSUS.

The protest is DENIED (as to the two December 28, 1995 entries and the January 4, 1996, entry, due to untimely filing). 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,

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