CLA-2 CO:R:C:M: 954792 MMC
District Director
U.S. Customs Service
P.O. Box 789
Great Falls, MT 59403
RE: Protest No.3304-93-100028; 7010.90.50; Additional U.S. Note
1(a); ENs 70.10, 70.13; HRL's 088020, 087779, 951991, 953280,
087727
Dear District Director:
The following is our response to the request for further
review of Protest No. 3304-93-100028 concerning your actions in
classifying and assessing duty on glass flip top bottles under
the Harmonized Tariff Schedule of the United States (HTSUS).
Descriptive literature was submitted for our review.
FACTS:
The subject merchandise is a brown glass bottle with a
polypropylene stopper attached to a metal snap closure. It holds
up to 16 liquid ounces and appears to have some form of embossed
decoration in the glass. The literature describes the bottle,
refered to as the "E.Z. Cap Bottle", as 100% reusable and
recyclable and suggests its primary use as storage for home
brewed beer.
The merchandise was entered under subheading 7010.90.50,
HTSUS, as jars for the commercial conveyance or packing of goods
or as preserve jars. However, the entry was liquidated on April
30, 1993, under subheading 7013.39.20, HTSUS, as glassware of a
kind used for table or kitchen purposes. The protest was timely
filed on June 17, 1993.
The subheadings under consideration are as follows:
7010.90.50 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:[o]ther:
[o]ther containers (with or without their
closures) Free
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. 30%
ISSUE:
Whether the glass flip top bottles are classifiable as jars
for the commercial conveyance of goods and/or preserve jars or as
glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1, HTSUS, states in part that for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
In this case, consideration was given to headings 7010 and
7013, HTSUS, which are both considered "use" provisions.
Additional U.S. Note 1(a), HTSUS, provides that: [i]n 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 understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted. The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 70.10,
pg. 933-934, states that "[t]his heading covers all glass
containers of the kinds commonly used commercially for the
conveyance or packing of liquids or of solid products (powders,
granules, etc.). They include...
(B) Jars, pots and similar containers for the conveyance or
packing of certain foodstuffs (condiments, sauces, fruit,
preserves, honey, etc.)...
These articles are usually made of ordinary glass
(colourless or tinted) by pressure in a mold usually
followed by blowing with compressed air. They generally
have a large opening, a short neck (if any) and as a rule, a
lip or flange to hold the lid or cap. Some of these
containers, however may be closed by corks or screwstoppers.
The heading also includes preserving jars of glass."
En 70.10 also states that heading 7010, HTSUS, does not include:
"[d]ecanters, drinking glasses and other glass containers
being domestic glassware (heading 70.13), but not containers
used primarily for the commercial conveyance or packing of
goods." emphasis added.
EN 70.13, p. 936, states:
This heading covers the following types of articles, most of
which are obtained by pressing or blowing in moulds:
(1) Tableware or kitchen glassware, e.g. drinking glasses,
goblets, tankards, decanters, infants' feeding bottles,
pitchers, jugs, plates, salad bowls, sauce-bowls, basins,
egg-cups, butter dishes, oil or vinegar cruets, dishes (for
serving, cooking, etc.), stew pans, casseroles, trays, salt
cellars, sugar sifters, knife-rests, mixers, table hand
bells, coffee-pots, and coffee-filters, sweetmeat boxes,
graduated kitchenware, plate warmers, table mats, certain
parts of domestic churns, cups for coffee mills, cheese
dishes, lemon squeezers, ice-buckets.
Protestant suggests that its bottles are classifiable in
subheading 7010.90.50, HTSUS, as either containers for the
commercial conveyance of food, or preserve jars. We disagree.
Numerous glass articles used to hold food products within
the home are not classifiable as preserve jars or containers for
the commercial conveyance of goods under subheading 7010.90.50,
HTSUS, but are considered to be of the class or kind of household
storage articles classifiable as table/kitchenware under
subheading 7013, HTSUS.
In Headquarter's ruling letter (HRL) 088020, dated January
14, 1991, we considered the classification of 12 sided glass jars
that varied in height from 5 1/2" to 14" and had bale/trigger
closures. We held that heading 7010, HTSUS, "provides for
standard size and shape jars that are used commercially to
convey, pack, or preserve foods." Because the subject jars were
shaped and sized differently than jars used to commercially
convey food and were used in the household as kitchen canisters
to hold various types of food they were classifiable in heading
7013, HTSUS. See, HRL 087779 dated December 27, 1990, which
classified a variety of glass jars, including a triangle shaped
glass storage jar with a metal cover and 12 3/4" high handle and
a round 12" high, glass storage jar with a cork stopper style
cover in heading 7013, HTSUS; and HRL 953280, dated February 5,
1993, which held that the subject jars were similar to the ones
in the rulings cited above and were shaped and sized differently
than those used to commercially pack and convey food.
The brown glass flip top bottles are not principally used as
the class or kind of merchandise contemplated by heading 7010,
HTSUS. The types of containers found in heading 7010, HTSUS, are
principally used to convey a product to the consumer who uses the
product in the container and then discards the container. The
subject bottles are not used to commercially convey food to a
consumer who discards it after this use, but instead are brought
and used repeatedly to store beer made in the home. In this
respect they function like the enumerated articles of EN 70.13,
e.g., salt cellars, decanters, vinegar cruets, etc.
Protestant cites HRL 951991, dated March 8, 1993, claiming
their bottle is similar to the jar considered in that ruling. We
disagree. In HRL 951991, we held that a green tinted jar with a
cork top was classifiable in heading 7010, HTSUS, because it was
used commercially to convey nuts to consumers for particular
hotels and resorts. The present bottles are not used to
commercially convey a product and therefore are not classifiable
in heading 7010, HTSUS.
Furthermore, the subject jars are not classifiable as
preserve jars. Various Customs rulings have confirmed the
position that household articles holding different volumes than
the typical preserve jars or in different forms than the typical
preserve jars are classifiable in heading 7013, HTSUS. See, HRL
087727, dated September 21, 1990, which held that glass spice
jars were not regarded as preserve jars classifiable in heading
7010, HTSUS, as they were not the size and shape of typical
preserve jars. The subject jars are a different form than the
typical Mason type preserving jar and therefore are not
classifiable as such.
Finally, we note that products similar to the present
bottles are the subject of pending litigation before the Court of
International Trade in Italglass v. United States, (Court No. 91-05-00369-S). Consequently, until this litigation is resolved,
protests regarding the classification of this merchandise should
be denied.
HOLDING:
For the foregoing reasons we find that the glass flip top
bottles are household storage articles classifiable in subheading
7013.39.20, HTSUS, as table/kitchen glassware.
In accordance with Section 3A (11)(b) of Customs Directive
0993550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision, together with the Customs Form 19,
should be mailed 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 Ruling Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings