HQ 960162 - Protest 2809-96-101705; glass containers; cruet; elongated, long necked jar with rim; principal use; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household glass storage articles; 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); 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) - United States International Trade Commision Rulings

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HQ 960162

October 17, 1997

CLA-2 RR:CR:GC 960162 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

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

RE: Protest 2809-96-101705; glass containers; cruet; elongated, long necked jar with rim; principal use; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household glass storage articles; 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); 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)

Dear Port Director:

This is in response to Protest 2809-96-101705, 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 under protest consists of two glass articles (other pieces of glassware were imported under the protested entry but were liquidated with classification in subheading 7010.92.50, HTSUS, free of duty; this ruling does not address whether the classification of those items (05434P, 00609P, and 05060P) was correct). The articles under protest are invoiced as "BOTT. TUSCIA 375 [ml.]" (code 00635P) and "BOTT. BORDUNDO 500 [ml.]" (code 03421P). According to the illustrations of these articles, item 00635P is a cruet-shaped article with a flat base, handle, relatively wide opening, and lip. Item 03421P has a cylindrical shape, is elongated (i.e., very tall relative to its width), and has a very long neck, small opening, and rim around the opening.

An entry of May 21, 1996, is included in the protest. The entry was liquidated on September 13, 1996, with classification of items 00635P and 03421P under subheading 7013.39.20, HTSUS.

On December 12, 1996, the importer protested, citing "ATTACHED JUSTIFICATION". The file contains no such attachment, but 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. ...

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 subject to the column one rate of duty and 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:

Are the 375 milliliter cruet-shaped article of glass and the 500 milliliter cylindrically shaped, elongated jar classifiable as containers of a kind used for the conveyance or packing of goods or glassware of a kind used for decoration or similar purposes?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and that 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 competing classifications are under headings 7010 and 7013, HTSUS. Heading 7010, HTSUS, provides for glass containers of a kind used for the conveyance or packing of goods, preserving jars of glass, and certain closures. Heading 7013, HTSUS, provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, not including glassware covered in heading 7010.

The provision in heading 7010, HTSUS, 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 v. United States, CIT Slip Op. 97-75, decided June 17, 1997).

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, applies. It 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, 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, 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

In applying Additional U.S. Rule of Interpretation 1(a), HTSUS, 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." (T.D. 96-7 is effective regarding merchandise entered for consumption or withdrawn from a warehouse for consumption on or after February 2, 1996, as is true in this case.) The criteria described in T.D. 96-7 in this regard 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. Item 03421P has a relatively small opening and a very long neck and, although it has a rim, is not configured to "hold" a lid or cap, other than a cork or similar closure. Item 00635P has a larger opening but, as a cruet-like article, is not configured to "hold" a lid or cap. 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 item 03421P 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 item 00635P is in the form of a cruet, a storage article with a handle. The protestant states that the containers are sold from the importer to a wholesaler/distributor who then packs the container with goods, but both articles are of a kind sold to the ultimate purchaser empty (we emphasize, as stated above (citing Italglass, supra), that 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 (elongated in the case of item 03421P and in the shape of a cruet, used for table or kitchen storage of food, in the case of item 00635P) 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 container to pack and convey goods to a consumer who discards the container after its initial use, the containers, and not their contents, are emphasized to customers. On the basis of these criteria, we conclude that neither of these articles is principally used for the conveyance or packing of goods. Classification under heading 7010 is precluded.

Both articles are classified under heading 7013. Item 03421P is of a kind which has been sold empty as a household storage articles, although it can also be used for the commercial conveyance or packing of goods (see above). The protestant provides no evidence regarding the principal use of this item, 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").

Item 00635P is in the form of a cruet. Cruets are not articles of a kind used to commercially convey or pack goods (see discussion of criteria for this determination above) (see above distinction between principal use and actual use). They are clearly principally used to store food material (see EN 70.13, which specifically enumerates "oil or vinegar cruets" among the exemplars listed as being covered by heading 7013 under table or kitchen glassware).

Accordingly, items 03421P and 00635P 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, other, other, valued not over $3 each, in subheading 7013.39.20, HTSUS.

HOLDING:

The 375 milliliter cruet-shaped article of glass and the 500 milliliter cylindrically shaped, elongated jar 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. 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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