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HQ 965200

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July 10, 2002

CLA-2 RR:CR:GC 965200 AML

CATEGORY: CLASSIFICATION

TARIFF Nos.: 7010.90.50; 7013.39.50; 7013.39.60; 7013.99.50; 9405.50.40

Port Director
U.S. Customs Service
1500 Port Blvd.
Miami, FL 33132

RE: Protest 5201-00-100573; glass articles

Dear Port Director:

This is in response to protest 5201-00-100573 (the apparent “lead” protest), which pertains to the tariff classification of certain articles of glass under the Harmonized Tariff Schedule of the United States (HTSUS); this ruling also addresses protests 5201-00-100574 and 5201-00-100792, which concern entries of similar articles and were suspended pending the determination of protest 5201-00-100573; this ruling also addresses protest 5201-00-100369, filed by a surety for the importer and also suspended pending determination of the lead protest. Pictorial representations and catalogue descriptions of the goods were submitted for our examination. Consideration was given to the presentation of counsel for the protestant in a telephone conference with representatives of this office on May 31, 2002, as well as a supplemental submission received on June 11, 2002.

FACTS:

Five entries, filed June 3, 25 and 29, July 19 and September 15, 1999, are included in the lead protest, which is against the classification of the various styles of glassware entered in the protested entries. The glassware is described in the following table (in order by entry and as the items appear in the invoice for each entry, unless otherwise noted; the following designations/abbreviations apply: La Mediterranea = LM; Vetreria Etrusca = VE; Shandong Gaomi = SG; H = height; W =width):

Factory/# Protestant’s # Description

LM 5023 605023 Puchades Jar, 1000 ml capacity 3” opening with 1” lip cork closure

LM 5024 605024 Puchades Jar, 500 ml capacity 2.5” opening with 1” lip cork closure

LM 5025 605025 Puchades Jar, 250 ml capacity 2” opening with 1.75” lip cork closure

LM 5028 605028 Mielera Jar, 1000 ml capacity 2” opening with 1.75” lip cork closure

LM 5029 605029 Mielera Jar, 500 ml capacity 2.25” opening with 1” lip cork closure

LM 5030 605030 Mielera Jar, 250 ml capacity 2” opening with 1.75” lip cork closure

LM 5077 605077 Cuadrado Big Square
3.37” opening with .25” lip

LM 5079 605079 Cuadrado Small Square
3.37” opening with .25” lip

LM 9046 609046 Redonodo Small Flower Pot
2.51” opening with .25” lip

Factory/# Protestant’s # Description

LM 9131 609131 Ecologic flower
4.48” opening with .25” lip

LM 9135 609135 Ecologic mini flower
2.31” opening with .25” lip

LM 9154 609154 Margarita small flower
1.5” opening with 3.5” lip

VE 02991177 100610 Vaso Leonardo, 106 ml capacity 1.6” opening with .32” lip

VE 02991178 100611 Vaso Leonardo, 212 ml capacity 2” opening with .32” lip

VE 02991178 100612 Vaso Leonardo, 314 ml capacity 2.2” opening with .32” lip

VE 03001180 100613 Vaso Leonardo, 370 ml capacity 2.48” opening with .32” lip

VE 02001363 100650 Vaso Quadro Firenze, 212 ml capacity 1.8” opening with .32” lip

VE 02001564 100520 Quadrotta, 500 ml capacity .8” opening with .32” lip cork closure

VE 02001660 100532 Giotto, 500 ml capacity .68” opening with .32” lip cork closure

Factory/# Protestant’s # Description

VE 02001669 100530 Giotto, 100 ml capacity .36” opening with .32” lip cork closure

VE 02002094 100531 Giotto, 200 ml capacity .44” opening with .32” lip cork closure

VE 02002903 100202 Cuore Collo Stretto, 100 ml capacity .48” opening with .25” lip cork closure

VE 02003795 100550 Rafaello Quadra, 200 ml capacity .44” opening with .32” lip cork closure

VE 02001733 100080 Mezzo Onda Piu, 250 ml capacity .80” opening with .32” lip cork closure

VE 02001126 100090 Mezzo Onda Meno, 250 ml capacity .80” opening with .32” lip cork closure

VE 02001219 100430 Vaso Giotto, 380 ml capacity 2.48” opening with .32” lip

VE 02001498 100080 Strauss, 200 ml capacity .76” opening with .32” lip cork closure

VE 02003570 100380 Lipari, 100 ml capacity .40” opening with .32” lip cork closure

Factory/# Protestant’s # Description

VE 02002090 100370 Salina, 100 ml capacity .40” opening with .32” lip cork closure

VE 02002045 100170 Luna, 200 ml capacity
.68” opening with .32” lip cork closure

VE 02001686 100270 Pesce Squalo, 750 ml capacity .80” opening with .32” lip cork closure

VE 03000739 100040 Goccia, 100 ml capacity .28” opening with .32” lip cork closure

VE 02001481 100340 Beethoven, 500 ml capacity .80” opening with .32” lip cork closure

VE 02001441 100350 Rossini, 500 ml capacity .68” opening with .32” lip cork closure

VE 02003769 100290 Cammello, 200 ml capacity .68” opening with .32” lip cork closure

VE 02000913 100100 Cuadra Onda, 250 ml capacity .68” opening with .32” lip cork closure

VE 02003716 100450 Vaso Le Carre, 200 ml capacity 3.48” opening with bail and trigger closure Factory/# Protestant’s # Description

VE 02002797 100460 Vaso Le Carre, 350 ml capacity 3.48” opening with bail and trigger closure

VE 02001847 100060 Palline, 100 ml capacity .32” opening with .28” lip cork closure

VE 02001717 100275 Pesce Luna, 750 ml capacity .76” opening with .36” lip cork closure

VE 02001562 100510 Quadrotta, 100 ml capacity .56” opening with .32” lip cork closure

VE 02001563 100515 Quadrotta, 250 ml capacity .56” opening with .32” lip cork closure

VE 02001978 100525 Michelangelo, 100 ml capacity .48” opening with .2” lip cork closure

VE 02001978 100526 Michelangelo, 200 ml capacity .48” opening with .28” lip cork closure

VE 02001978 100527 Michelangelo, 500 ml capacity .76” opening with .24” lip cork closure

Factory/# Protestant’s # Description

VE 02001976 100540 Raffaelo, 100 ml capacity .48” opening with .2” lip cork closure

VE 02002101 100541 Raffaelo, 200 ml capacity .48” opening with .28” lip cork closure

VE 02002142 100570 Vienna, 200 ml capacity .48” opening with .32” lip cork closure

VE 02001685 100280 Pesce, 750 ml capacity .76” opening with .36” lip cork closure

VE 100581 Onda Alta, 200 ml capacity
.56” opening with .32” lip cork closure

VE 100400 Onda Alta, 100 ml capacity
.48” opening with .32” lip cork closure

VE 03001403 100260 Cavallucio Marino, 200 ml capacity .76” opening with .24” lip cork closure

VE 03000628 100430 Vaso Giotto, 380 ml capacity 2.48” opening with .32” lip

VE 98000101 100470 Vaso Le Carre, 500 ml capacity 3.28” opening with bail and trigger closure

Factory/# Protestant’s # Description

VE 02001232 100600 Toledo, 100 ml capacity .48” opening with .32” opening cork closure

On May 15, 2002, a member of my staff confirmed with counsel for the protestant that the articles listed above comprise the articles contained in three of the five protested entries: WYQ-2002-4740, WYQ-2002-6745 and WYQ-2002-3494. From the entry summaries for the remaining entries, we note the remaining styles that are subject of the protest (duplicated styles are not repeated):

Factory/# Protestant’s # Description

SG 933 Melon Jar 1.7 liter with cork lid

SG 928 Melon Jar 3.7 liter with cork lid

SG 929 Melon Jar 7 liter with glass lid

SG 930 Melon Jar 16 liter with glass ball top

SG 901 Orcio Hermetic Jar with hinged glass

SG 702LE 12” Square pasta with cork lid

SG 6701 Chairman Jar .85 liter

SG 6702 Chairman Jar .4 liter with cork lid

SG 9801 Fruit Basket Shaped Jar

SG GS-23 Quadra Etung

SG 3501-4 Square Jar .85 liter with cork lid

The protestant states that “most of the samples” are used as glass candle holders. The protestant states that the articles are imported empty and following importation will be filled with candle wax or gel and wick. For these reasons, the protestant asserts that the articles are classifiable under heading 9405, HTSUS, which provides for “non-electric lamps and light fittings.” Specifically, the protestant contends that articles numbered 605079, 609154, 609046, 605077, 609135, 605030, 609131, 605028, 605029, 605025, 605023, 605024 should be so classified. The protestant states that other samples should be classified under heading 7010, HTSUS, which provides for glass containers commonly used commercially for the conveyance and packing of goods. Specifically, the protestant contends that articles numbered 100280, 100470, 100570, 100581, 100260, 100400, 100430, 100541, 100526, 100540, 100527, 100525, 100275, 100515 and 100510 should be so classified.

The entries were made on June 3, 25 and 29, July 19 and September 15, 1999, and the entries were liquidated on September 15, 2000. All of the merchandise was classified under subheadings 7013.39 and 7013.99, HTSUS, as table or kitchen glassware or decorative glassware, respectively, depending at the eight-digit level upon value. On December 13, 2000, counsel for the protestant filed this protest, arguing alternatively as described above and below that the merchandise is of a kind used for the conveyance or packing of goods and should be classified in heading 7010, HTSUS, or as non-electric lamps and light fittings (candleholders) under heading 9405, HTSUS.

ISSUE:

Whether the glassware is classifiable as preserving jars of glass or containers of a kind used for the conveyance or packing of goods under heading 7010, HTSUS, or glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under heading 7013, HTSUS, or as non-electric lamps and light fittings under heading 9405, HTSUS?

LAW AND ANALYSIS:

Initially, we note that the lead protest (5201-00-100573, so too were protests 5201-00-100574 and 5201-00-100792) 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 the matter protested is protestable (see 19 U.S.C. §1514(a)(2) and (5)).

With regard to protest 5201-00-100369

The Customs Form (“CF”) 19 completed by the surety bears a hand-written protest number 5201-00-100573. Via email dated May 24, 2002, Customs Miami confirmed the protest number to be 5201-00-100369., we note that the affected entries were liquidated on September 15, 2000 and the protest bears a filing date of April 9, 2001 – 206 days after liquidation. Using the September 15, 2000, date as the date of filing of the protest, the protest was untimely filed (i.e., a protest must be filed within 90 days after but not before the notice of liquidation (19 U.S.C. §1514(c)(3)(A); 19 C.F.R. §174.12(e)). The notice of liquidation was dated September 15, 2000, and the protest was filed April 9, 2001, 206 days after the notice of liquidation). For an example of the judicial treatment of a protest filed 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). Protest 5201-00-100369 must be denied. The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRIs). 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. 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 HTSUS provisions 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:
Other, of a capacity:
7010.90 Exceeding 0.33 liter but not exceeding 1 liter:
7010.90.20 Produced by automatic machine. 7010.90.50 Other containers (with or without their closures).

7013 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:
7013.39 Other:
7013.39.20 Valued not over $3 each.
7013.39.50 Valued over $3 but not over $5 each. 7013.39.60 Valued over $5 each.
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over $3 each. 7013.99.60 Valued over $3 but not over $5 each.
9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illumi nated nameplates and the like, having a perma nently fixed light source, and parts thereof not elsewhere specified or included:
9405.50 Nonelectrical lamps and lighting fittings: Other:
9405.50.40 Other.

An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). The articles at issue are empty glassware of various shapes and sizes. While the use of the articles is considered in the analysis (see below), the sizes, characteristics and appearance of the articles are also considered in determining their classification.

Via facsimile dated June 11, 2002, the protestant presented evidence that all of the articles sourced from Vetreria Etrusca are annealed after shaping during the process of manufacture. We note that “all glass articles must go through an annealing or heat-treatment cycle after forming and cooling as annealing prevents harmful stresses from freezing into the glass.” See HQ 960274, dated October 9, 1997. Thus, the annealing process does not influence our classification determinations.

The provision for preserving jars of glass in heading 7010 is an eo nomine provision (Myers v. United States, 969 F. Supp. 66, 71-73 (CIT 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)). As an eo nomine provision is more specific than a use provision, we will consider the former first. Next, we will consider merchandise which is properly classifiable under heading 7010 as “of a kind used” as it cannot be classified under heading 7013, because of the specific parenthetical provision to that effect in heading 7013 (Myers, 969 F. Supp. at 75).

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. [969 F. Supp. at 74]

In this case, item #s 100450, 100460, 100470, each with a wire bail and trigger, rubber ring closure system, are classifiable in accordance with Myers, supra. That is, the articles meet the 3-part test of Myers in that the glass walls of the jars are relatively thick, the closure system provides the ability to form and maintain a hermetic seal, and the jars have potential for reuse as canning or preserving jars. Based on Myers and the criteria therein, we conclude that these articles are described in the eo nomine provision "preserving jars of glass" in heading 7010, HTSUS. Item #s 100450, 100460, 100470, each with a wire bail and trigger, rubber ring closure system, are classified in subheading 7010.90.50, HTSUS. This is consistent with Headquarters Ruling (HQ) 960513 dated August 11, 1997, and HQ 959637 dated December 4, 1997.

EN 70.10 states, in pertinent part that "[t]his 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.

In applying Additional U.S. Rule of Interpretation 1(a), HTSUS, and the relevant cases below to heading 7010, HTSUS, 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.

With regard to the “Vaso Leonardo”, “Vaso Quadro Firenze” and “Quadrotta”, (item #s 100610, 100611, 100613, 100650, 100510, 100515 and 100520), the sizes of the openings and necks vary but each article is configured to "hold" a lid or cap with a traditional threaded closure. There is no evidence as to whether the ultimate purchaser’s primary expectation would be to discard or recycle the articles after the goods conveyed or packed in them are destroyed, but the relatively ordinary appearance (e.g., compared to the other articles considered in this protest) and nature of the articles supports such a conclusion. There is no evidence whether the environment of sale of the articles features the goods packed in the articles and not the articles themselves, or whether the articles are recognized in the trade as used primarily to pack and convey goods to a consumer who then discards or recycles the articles after this initial use, but the physical form (see above) indicates that this is so. Item #s 100610, 100611, 100613, 100650, 100510, 100515 and 100520 are properly classified in heading 7010, HTSUS, and therefore may not be classified in heading 7013, HTSUS. They are classifiable as containers of glass of a kind used for the conveyance or packing of goods in subheading 7010.90.50, HTSUS. This is consistent with HQ 959639 dated October 21, 1997.

Within heading 7013, subheading 7013.39.20 provides for "... [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"; subheading 7013.39.50 provides for "... [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: ... [other] ... [v]alued over $3 but not over $5 each"; and subheading 7013.99.60 provides for "... [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: ... but not [v]alued over $3 each: ... [other] ... [v]alued over $5 each".

Headings 7013 and 9405, HTSUS, as applicable to the merchandise under consideration, are controlled by use (other than actual use) (see Group Italglass U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993); E.M. Chemicals v. United States, 923 F. Supp. 202 (CIT 1996); Stewart-Warner Corp. v. United States, 3 Fed. Cir. (T) 20, 25, 748 F.2d 663 (1984)). 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 C.F.R. §10.131 - 10.139); as stated above, the competing provisions are principal use provisions, not actual use provisions).

This office has exhaustively reviewed the principal use of articles such as those under consideration (glassware in various forms contended to be principally used as candle holders). In the March 25, 1998, edition of the CUSTOMS BULLETIN, Volume 32, Number 12, page 32, Customs issued a notice under 19 U.S.C. §1625 proposing to modify or revoke two Headquarters and five New York ruling letters, to classify the articles described therein as other glassware of a kind used for indoor decoration or similar purposes in subheading 7013.99, HTSUS, instead of as candle holders in subheading 9405.50.40, HTSUS. The comments submitted in response to this notice provided considerable information regarding the "pertinent factors" (see above) related to the principal use of the class or kind of goods to which the goods considered in the proposed rulings belong. Based on this information, Customs has concluded that the class or kind for goods such as the “Vaso Leonardo” and similar containers is defined by the form or shape of the article (e.g., bell-shape, similar to bell-shape, flower pot shape, tulip or flower petal shape, cube or rectangle shape, and possibly other shapes) and its size. We have found there to be a clear distinction between glassware used as candle holders and that used for general indoor decoration based on the size of the articles, in the absence of other pertinent evidence or information. Glassware of those forms with an opening of 4 inches or less in diameter and a height or depth of 5 inches or less is used substantially more frequently as a candle holder than for any other purpose, according to the information we have obtained, and larger glassware is used substantially more frequently for general indoor decoration.

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. Heileman 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).)

Note 1(e) to Chapter 70, HTSUS, provides that the Chapter does not cover “lamps or light fittings . . . or parts thereof of heading 9405[.]” Thus, if it is determined that the essential character of the articles is that of a candleholder, the articles cannot be classified under heading 7013, HTSUS.

The EN to heading 9405, HTSUS, states that lamps and light fittings of this group can be composed of any material and use any source of light, including candles. In addition, EN 9405 states that this heading covers “in particular: (6) [c]andelabra, candlesticks, and candle brackets[.]”

We have previously considered the definitions of the terms used in the heading and EN. In Headquarters Ruling Letter (HQ) 957412, dated August 1, 1995, we stated that:

[T]hese rulings (HQ 954308 dated June 6, 1994, HQ 955935 dated May 16, 1994, HQ 953016 dated April 27, 1993, HQ 088742 dated April 22, 1991, and HQ 089054 dated August 2, 1991) held that the terms "candlestick", "candlestick holder", and "candle holder" are interchangeable. Candle holder has been defined as a candlestick, Webster's II New Riverside University Dictionary, pg. 224 (1st ed. 1984), and as a holder for a candle; candlestick, The Random House Dictionary of the English Language, pg. 216 (1st Ed. 1983). Candlestick has been defined as a utensil for supporting a candle, whether elaborately made or in the common form of a saucer with a socket in the center, Webster's New International Dictionary, pg. 390 (2d ed. 1939). Reference to lexicographic authorities is proper when determining the meaning of a tariff term. Hasbro Industries, Inc. v. U.S., 703 F. Supp. 941 (CIT 1988), aff'd, 879 F.2d 838 (1989); C.J. Tower & Sons of Buffalo, Inc. v. U.S., 69 CCPA 128, 673 F.2d 1268 (1982).

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, HTSUS, or the class "glassware of a kind used for table or kitchen purposes; glass storage articles" in heading 7013, HTSUS.

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, HTSUS, are:

1. [The container] generally [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. [T]he ultimate purchaser’s primary expectation is to discard/recycle the container after the conveyed or packed goods are used;

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

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

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

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

7. [The container is] recognized 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. Each of the articles appears to have been manufactured by automatic machine from ordinary glass. The articles are imported by the protestant and in turn are sold to wholesalers/distributors who packs them with foodstuffs, beverages, oils, etc., for commercial conveyance and sale. There is no evidence whether the articles are capable of being used in the hot packing process.

Item #s 605077, 605079, 609135, and 609046 meet the criteria delineated above regarding the differentiation of glass articles for conveyance or decoration versus candleholders. They are either in the form of flower pots or squares and are of the dimensions commonly associated with candleholders. Thus item #s 605077, 605079, 609135, and 609046 will be classified under heading 9405, HTSUS.

Application of the criteria in T.D. 96-7, supra, to the remaining articles indicates that they are not of the class or kind principally used for the conveyance or packing of goods. The sizes of the openings and necks vary but the articles are not configured to "hold" a lid or cap, other than having a rim with which a cork or similar closure may be used. There is no evidence as to whether the ultimate purchaser’s primary expectation would be to discard or recycle the articles after the goods conveyed or packed in them are used or exhausted. However, the attractive, unique and unusual forms of the articles (the “Puchades” and “Mielera” Jars (item #s 605023, 605024, 605025, 605028, 605029 and 605030), Giotto bottles (item #s 100532, 100530, 100531), Cuore Collo Stretto (item # 100202), Rafaello Quadra (item # 100550), Mezza Onda Piu (item # 1000080), Mezza Onda Meno (item # 100090), Vaso Giotto (item # 100430), Strauss (item # 100561), Lipari (item # 100380), Salina (item # 100370), Luna (item # 100170), Pesce Squalo (item # 100270), Goccia (item # 100040), Beethoven (item # 100340), Rossini (item # 100350), Cammello (item # 100290), Quadra Onda (item # 100100), Palline (item # 100060), Pesce Luna (item # 100275), Michelangelo (item #s 100525, 100526, 100527), Raffaelo (item #s 100540 and 100541), Vienna (item # 100570), Pesce (item # 100280), Onda Alta (item #s 100581, 100400), Cavallucio Marino (item # 100260), and Toledo (item # 100600)) supports the conclusion that the articles would be retained for decorative or storage purposes. Their varied sizes and capacities support the same conclusion for each of those articles, as does the fact that the top closures for all of these articles are cork or similar closures allowing for repetitive, extremely easy opening and closing. In the case of the cylindrically shaped articles (Quadrotta, (item # 100520), Quadrotta (item #s 100510 and 100515)), although the articles are somewhat similar to wine bottles (see HQ 961409 dated October 22, 1998), they have unusually long necks and an attractive, unusual form, supporting the same conclusion. Similarly, although there is no evidence whether the environment of sale of the articles features the goods packed in the articles and not the articles themselves, or whether the articles are recognized in the trade as used primarily to pack and convey goods to a consumer who then discards or recycles the articles after this initial use, the foregoing factors support the conclusion that the articles are emphasized in the environment of sale and that the articles are retained after use for decorative or storage purposes. These articles are classified as other glassware of a kind used for table (other than drinking glasses) or kitchen purposes under subheadings 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS, depending on value. This is consistent with HQ 959637 dated December 4, 1997, and HQ 961353 dated October 20, 1998.

No description or illustration was provided for some of the articles: item #s VE 85000242 (TO 48 Oro Rosso 48mm), 85000156 (TO 53 Oro RTS 53mm), 85000171(TO 58 Oro RTS 58mm), 85000139 (TO 63 Oro RTS 63mm), 85000121(TO 70 ABA RTS 70mm), item #s VE 85000125 (TS Granada/et cal), 85000056 (Tappo Sugh A 24 x 14), 85000095 (TS Quadrotta 100/250), 85000055 (Tappo Sug B 26 X16); SG 933, Melon Jar 1.7 liter with cork lid; SG 928 Melon Jar 3.7 liter with cork lid, SG 929 Melon Jar 7 liter with glass lid; SG 930 Melon Jar 16 liter with glass ball top; SG 901 Orcio Hermetic Jar with hinged glass; SG 702LE 12” Square pasta with cork lid; SG 6701 Chairman Jar .85 liter; SG 6702 Chairman Jar .4 liter with cork lid; SG 9801 Fruit Basket Shaped Jar; SG GS-23 Quadra Etung; SG 3501-4 Square Jar .85 liter with cork lid; SG 933. The law governing protests requires a protest to set forth "distinctly and specifically ... each category of merchandise ...[,] ... the nature of each objection and the reasons therefor ... and ... any other matter required by the Secretary [of the Treasury] by regulation" (19 U.S.C. §1514(c)(1)(B) through (D)). The Customs Regulations issued under this law require "[a] specific description of the merchandise ..." and that "[t]he nature of, and justification for the objection [be] set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal" (19 C.F.R. §174.13(a)(5) and (6)). In the absence of a description or illustration of these articles, the protest must be denied in regard to them and they are classified as liquidated, as other glassware of a kind used for table (other than drinking glasses) or kitchen purposes in subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS, or 7013.99.50, HTSUS, as other decorative glass articles, depending on value.

We are not persuaded by the protestant’s reliance upon the holding in Will & Baumer Candle Co., Inc. v. United States, 21 Cust. Ct. 149 (1st Div. 1948). In that case, the Court considered whether 3 horizontal lines on a religious candle constituted decoration or ornamentation. The articles at issue (including those deemed to be classifiable as candleholders) are readily distinguishable from the articles considered by the Court in Will & Baumer; they consist of decorative bottles and kitchen ware, as well as glass for the conveyance of goods.

HOLDINGS:

(1) Item #s 100450, 100460, 100470, each with a wire bail and trigger, rubber ring closure system, are classified as preserving jars of glass, other containers (with or without their closures), under subheading 7010.90.50, HTSUS.

(2) Item #s 100610, 100611, 100613, 100650, 100510, 100515 and 100520 are classified as containers of glass of a kind used for the conveyance or packing of goods, other containers (with or without their closures), under subheading 7010.90.50, HTSUS.

(3) Item #s 605077, 605079, 609135, and 609046 will be classified as candleholders under subheading 9405.50.40, HTSUS, as non-electric lamps and lighting fittings, other, other.

(4) The remaining articles are classified as other glassware of a kind used for table (other than drinking glasses) or kitchen purposes under subheading 7013.39.20, 7013.39.50, 7013.39.60, or 7013.99.50, HTSUS, depending on value.

The protest should be GRANTED IN PART (as to Item #s 100450, 100460, 100470, 100610, 100611, 100613, 100650, 100510, 100515 and 100520, 605077, 605079, 609135, and 609046), and DENIED IN PART (as to the remaining articles). Protest 5201-00-100369 must be DENIED (see above).

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty (60) days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director,

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See also:

• Tariff No.: 7010.90.20 - Glass containers for conveyance/packing perfume/toilet preps & containers with/designed for ground glass stopper, made by automatic machine
• Tariff No.: 7010.90.50 - Glass carboys, bottles, jars, pots, flasks, & other containers for conveyance/packing of goods (w/wo closures) & preserving jars, nesoi
• Tariff No.: 7013.39.20 - Glassware for table or kitchen purposes (o/than drinking glasses), nesoi, valued n/over $3 each
• Tariff No.: 7013.39.50 - Glassware for table or kitchen purposes (o/than drinking glasses), nesoi, n/cut or engraved, valued over $3 but n/o $5 each
• Tariff No.: 7013.39.60 - Glassware for table or kitchen purposes (o/than drinking glasses), nesoi, n/cut or engraved, valued over $5 each
• Tariff No.: 7013.99.50 - Glassware for toilet/office/indoor decor. or similar purposes, nesoi, valued over $0.30 but n/over $3 each
• Tariff No.: 7013.99.60 - Glassware for toilet/office/indoor decor. or similar purposes, nesoi, cut or engraved, valued over $3 but n/over $5 each
• Tariff No.: 9405.50.40 - Non-electrical lamps and lighting fixtures nesoi, not of brass