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HQ 960163




October 22, 1997

CLA-2 RR:CR:GC 960163 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.92.50; 7013.39.20; 7013.39.60; 7013.99.50

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

RE: Protest 2809-96-101589; untimely protest; various glass containers; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household storage articles; HRL 959639; 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

Dear Port Director:

This is in response to Protest 2809-96-101589, which pertains to the tariff classification of certain articles of glass under the Harmonized Tariff Schedule of the United States (HTSUS). Pictorial representations of the articles were submitted for our review.

FACTS:

The merchandise consists of various glassware. Because the protest is untimely as to both protested entries (see below), only a very brief description of the glassware which was liquidated under subheading 7013.39.20 or 7013.39.60, HTSUS, is provided. Items 01025 and 04018 are described in HRL 959639, dated October 21, 1997 (as 01025S and 04018S, respectively). Items 0191 and 0251 appear to be small squat round bottles, with a very short neck or no neck, a large opening, and either threads for a twist-on lid or a wire bail and rubber ring closure system (the pictorial representations for these items are very unclear). Item 3705 is conically shaped (diminishing in diameter upwards) (similar to a Erlenmeyer flask in shape), has a short neck, moderate size opening, and a rim, and appears to be configured for a cork lid. Item 5034 has four sides (the dimensions of each side appear to form a square), a fairly long neck, a rim, and appears to be configured for a cork lid. Item 6139 appears to have three or four sides (the picture is unclear) which do not diminish in width upwards, a moderate length neck, a rim, and appears to be configured for a cork lid. We are not describing or commenting on the items which were liquidated under subheading 7010.90.30 or 7010.90.50, HTSUS, free of duty.

Two entries, of May 1 and 7, 1996, are included in the protest. Both entries were liquidated on August 30, 1996.

On November 29, 1996, the importer protested, citing "ATTACHED LETTER OF EXPLANATION AND JUSTIFICATION FOR PROTEST". 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. ...

Further review was requested and granted.

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

7010: [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.

Goods classifiable under subheading 7010.91.50 (... [o]ther, of a capacity: [e]xceeding 1 liter: ...[o]ther containers (with or without their closures)) or subheading 7010.92.50 (... [o]ther, of a capacity: ... [e]xceeding 0.33 liter but not exceeding 1 liter: ...[o]ther containers (with or without their closures)) receive duty-free treatment.

7013: [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).

The 1996 general column one rate of duty for goods classifiable under subheading 7013.39.20 (... [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) is 28.5% ad valorem. The 1996 general column one rate of duty for goods classifiable under subheading 7013.39.60 (... [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 over $3 each: ... [o]ther: ... [v]alued over $5 each) is 7.2% ad valorem. The 1996 general column one rate of duty for goods classifiable under subheading 7013.99.50 (... [o]ther glassware: ... [o]ther: ... [o]ther: ... [o]ther: ... [v]alued over $.30 but not over $3 each) is 30% 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 or glassware of a kind used for decoration or similar purposes?

LAW AND ANALYSIS:

The protest was untimely as to both entries (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 August 30, 1996, and the protest was filed November 29, 1996, 91 days after the notice of liquidation (1 day in August, 30 days in September, 31 days in October, and 29 days in November). 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 (1989), 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 untimely.

For your information, we are briefly considering the classification of the protested items. Applicable law and analysis may be found in HRL 959639, copy enclosed. Items 01025 and 04018 were ruled upon in HRL 959639. They 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 7013.39.60, HTSUS. Items 0191 and 0251 appear to have relatively large openings, no necks, and may be threaded to "hold" a lid or cap or may have a wire bail and rubber ring closure system. They may be classifiable as preserving jars under subheading 7010.92.50, HTSUS (if they have wire bail and rubber ring closure systems; see Myers v. United States, CIT Slip Op. 97-75, decided June 17, 1997); as containers of glass of a kind used for the conveyance or packing of goods in subheading 7010.92.50, HTSUS (if that is their principal use; see discussion of items 00258P and 00268P in HRL 959639); or as glassware of a kind used for table (other than drinking glasses) or kitchen purposes in subheading 7013.39.20, HTSUS (if that is their principal use; see HRL 959639 and T.D. 96-7). Without samples and clearer pictures, no more definite advice may be given on these items. Item 3705 appears to be similar in shape to a cruet or vase. If principally used for food storage, it is classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes in subheading 7013.39.20, HTSUS (see the analysis of items 00487P, 03919Q, 04132P, and 05012P in HRL 959639). If principally used for general indoor decoration or for storage of toilet articles, it is classifiable as other glassware of a kind used for toilet or indoor decoration or similar purposes, in subheading 7013.99.50, HTSUS. Without samples and more information, no more definite advice may be given on this item. Items 5034 and 6139 are jars with geometrical shapes (3 or 4-sided), similar to items 03613P, 03761P, 03762P, 03763P, 05153P, 05427P, and 05430P in HRL 959639. They are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes in subheading 7013.39.20, HTSUS.

HOLDING:

The protest was untimely as to both entries (19 U.S.C.

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,
Commercial Rulings Division

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