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HQ 967204




September 8, 2004

CLA-2:RR:CR:GC 967204 IOR

CATEGORY: CLASSIFICATION

Tariff No.: 7013.39.20; 7013.39.50; 7013.39.60 HTSUS

Port Director
Customs and Border Protection
50 South Main St., Suite 100R
St. Albans, VT 05478

RE: Classification of glass articles; I/A # 04/015

Dear Port Director:

This is in response to your request for Internal Advice, I/A# 04/015, dated April 22, 2004 to the National Commodity Specialist Division (NCSD) with regard to the classification of glass articles under the Harmonized Tariff Schedule of the United States (HTSUS). Your request was referred to this office for reply by the NCSD.

FACTS:

The merchandise at issue consists of five styles of glass articles that will be imported empty. The articles are imported from Canada and the United Kingdom. After importation the glass articles will be filled by the importer with layered or mixed fruits or vegetables, and vinegar. The closures will be cork with wax covering. Your request states that the filled articles will be sold in certain retail stores which sell apparel, kitchen items, and home furnishings, but are not known as grocery stores or food specialty stores. Copies of photos of the glass articles after being filled have been provided.

The five styles of glass articles at issue are as follows:

Style 4 Tarquinia, 3L capacity, 16 ½” high Oval shaped smooth glass

Style 6 Monica, 1.5L capacity, 15” high Shaped as five doughnut shaped unevenly stacked smooth glass segments, topped with a neck

Style 8 Patrizia, 3L capacity, 23” high, with a spigot Shaped as five unevenly stacked smooth glass cylinders, topped with a neck

Style 10 Lunik, 2L capacity, 15” high, with a spigot Rectangular shape with beveled appearance at top and bottom of rectangular portion, with a rounded neck

Style 105 Cuadrado Decanter, 1L capacity, 7” high Rectangular with the appearance of cut glass

All of the containers have short to medium length necks. The size of the openings are not provided, but in the photos provided, they appear to be about the size of the openings of wine bottles.

ISSUE:

Whether the empty glass articles are classifiable as containers of glass, of a kind used for the conveyance or packing of goods, under heading 7010, HTSUS, or glassware of a kind used for kitchen or decoration or similar purposes under heading 7013, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The HTSUS subheadings under consideration are as follows:

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:
7010.90.50 Other containers (with or without their closures)

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:
Other:
Valued not over $3 each
Valued over $3 each:
Other:
Valued over $3 but not over $5 each
Valued over $5 ach

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs and Border Protection (CBP) believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The 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, kitchen, toilet, office, indoor decoration, or similar purposes in heading 7013) are "principal use" provisions (Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993)). 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, and not necessarily the article's actual use, determines whether it is classifiable within a particular class or kind. Due to the language of heading 7013, HTSUS, excluding goods of heading 7010, HTSUS, if a good is classifiable in both headings, heading 7010, HTSUS, will prevail if principal use is proven with respect to heading 7010, HTSUS. Principal use is the largest use in the United States at the time of importation of articles of the same class or kind as the imported article.

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 (1976).)

In applying Additional U.S. Rule of Interpretation 1(a), HTSUS, and the above cases to heading 7010, it is CBP’s 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, CBP considers the other enumerated principal use criteria.

The EN for heading 7010, HTSUS, 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.

CBP has used the above criteria in classifying articles such as those under consideration. See, e.g., HQ 959638 dated October 10, 1997, which classified triangle shaped and 12-sided glass jars with cork lids under heading 7013, HTSUS (see also HQs 087779 dated December 27, 1990, 955951 dated April 15, 1994, 953952 dated September 22, 1994, and 959637 dated December 4, 1997, and Treasury Decision (T.D.) 96-7 which sets forth CBP’s position as to headings 7010 and 7013, HTSUS, for containers of glass used for the conveyance or packing of goods and glass storage articles).

The criteria in T.D. 967 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 glass articles at issue is as follows. The method of manufacture of the articles and the type of glass is not apparent and no information has been provided. The articles all have small openings with short to medium length necks, and although they have rims, they are not configured to hold a lid or cap, other than a cork or similar closure. Because of the unusual and attractive shapes, an ultimate purchaser’s primary expectation would be to save the article after the conveyed or packed goods are used or no longer desired for the decorative quality of the article, as opposed to discarding or recycling the article. The cork lids allow for repetitive, easy opening and closing, and the spigots on two styles allow easy dispensing of liquids. The importer fills the articles as opposed to selling the articles to a wholesaler or distributor for packing, indicating that the articles are specifically selected for their appearance. The filled articles are sold in an environment of sale that features the articles themselves, and not the goods packed therein, i.e., they are sold in outlets associated with home décor as opposed to food items. There is no evidence that the containers are used to commercially convey foodstuffs, beverages, oils, meat extracts, etc., however the shapes of the articles combined with their large size, and spigots in some cases, indicate that the containers are not used commercially to convey foodstuffs. There is no evidence that the containers are capable of being used in the hot packing process. The physical form of the articles, their unique and decorative shapes, 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. The shape is particularly emphasized in the case of the particularly tall and large capacity characteristics of all of the articles, except for style 105. Although there is no evidence of 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 initial use, the foregoing factors support the conclusion that the articles are retained after use for decorative or storage purposes. On the basis of these criteria, we conclude that these articles are not principally used for the conveyance or packing of goods.

In HQ 959638, supra, CBP stated: “The jars at issue are not used commercially. They are household jars that are used as canisters in the kitchen to hold various types of food [quoting HQ 087779, supra].” Similarly, the articles in this case are of a kind used (i.e., principally used) for kitchen or decoration or similar purposes and not as "... containers of the kind commonly used commercially for the conveyance or packing of liquids or of solid products" (EN 70.10). The physical form of the articles supports this conclusion. Because the competing tariff provisions are "principal use" provisions and not "actual use" provisions, the fact that the jars are sold filled with vinegar and fruit or vegetable mixtures, does not affect this conclusion (see HQ 957960 dated February 5, 1996, holding certain candy-filled decorative glass jars to be separately classifiable from the candy under heading 7013, HTSUS. For a thorough description of CBP’s position in this regard; see also Fontana Hollywood Corp.v. United States 64 Cust. Ct. 204, C.D. 3981 (1970), holding certain long-neck bottles filled with wine to be "unusual" bottles subject to tariff treatment separate from the wine contained in the bottles). Classification under heading 7010 is precluded.

The articles are classified under heading 7013, HTSUS. Evidence regarding the principal use of the items has not been provided, but many of the criteria used in the analysis of the applicability of heading 7010, HTSUS, support principal use as household storage articles (e.g., lids that allow for repetitive, extremely easy opening and closing; when sold filled the physical form shows that the container, not the contents, is emphasized).

Style 105 is a decanter, and styles 4, 6, 8 and 10 are large decorative bottles, and are of a kind principally used for table or kitchen purposes, under EN 70.13 which includes “decanters” and “jugs” among the exemplars listed as being covered by heading 7013 under table or kitchen glassware. A “decanter” is defined as “a decorative bottle used for serving liquids, as wine” and “a vessel used for decanting,” and “decant” is defined as “to pour (a liquid) from one container into another.” The American Heritage Dictionary (2d Coll. Ed.) (1982), p. 370. Style 105 is clearly a decanter. While styles 4, 6, 8 and 10 are not shaped as typical decanters, similarly shaped and sized articles have been determined to be principally used for table or kitchen purposes. See HQ 959637, dated December 4, 1997 (serpentine shaped article over one foot tall); HQ 959639, dated October 21, 1997 (2 and 6 liter, rounded or 4-sided articles with and without spigots); and HQ 959638, dated October 10, 1997 (a 23” tall 12 sided jar with a cork). T.D. 96-7 included in glassware of a kind used table or kitchen purposes, glass storage articles. All five styles are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics, in subheadings 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS, depending on value.

We note that some of the imported articles are imported from Canada. Subheadings 7013.39.20, 7013.39.50, 7013.39.60, HTSUS, provide for duty-free treatment for goods from Canada that qualify as originating under the North American Free Trade Agreement (“NAFTA”). To be eligible for tariff preference under the NAFTA, the goods must meet the requirements set forth in General Note 12(b).

HOLDING:

The glass articles identified as styles 4, 6, 8, 10 and 105 are classifiable in subheadings 7013.39.2000, 7013.39.5000, or 7013.39.6000, HTSUSA, as “[g]lassware 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: Other: Valued not over $3 each...”, or “Valued over $3 each: Other: Valued over $3 but not over $5 each” , or “Valued over $5 each,” depending on the value of the item, with a column one, general duty rate of 22.5%, 15%, or 7.2%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

You are to mail this decision to the internal advice applicant no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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