CLA-2 CO:R:C:M 955980 MMC
District Director
U.S. Customs Service
1000 2nd Ave.
Room 2200
Seattle, WA 98104
RE: Protest 3001-93-100580; Multi-faceted "banjo" oval flask and
long neck hexagon shaped glass containers; U.S. Additional Note
1(a); EN 70.10; HRL 087359
Dear District Director:
The following is our decision regarding the request for
further review of Protest 3001-93-100580, concerning your action
in classifying and assessing duty on two styles of glass
containers (multi-faceted "banjo" oval flask and long neck
hexagon shaped sauce jars) under the Harmonized Tariff Schedule
of the United States (HTSUS). A sample of each was submitted for
our review.
FACTS:
The 250 ml (8oz.) glass containers in question are described
as RP-202 (GC- 170) multi-faceted "banjo" oval flask and long
neck hexagon shaped sauce jars. Protestant states that they are
made of ordinary disposable recyclable glass, have standard glass
industry finishes and were produced by an Automated Individual
Section Container Forming Machine, which uses a variety of stock
molds to produce the containers by pressure and blown compressed
air.
He further states that the containers are sold by the
importer to various distributors who then sell the containers to
food packers. The food packers exclusively use the containers to
package, convey, market and sell salad dressings, jams, jellies,
honey, mustards, salsa and other food products. The containers,
which range in price between twelve and fourteen cents each, are
not sold to household consumers until filled.
The headings 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.
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 merchandise was entered under subheading 7010.90.50,
HTSUS, as glass containers for the conveyance or packing of
goods. However, the entry was liquidated on June 4, 1993, under
subheading 7013.39.20, HTSUS, as glass containers for household
storage. The protest was timely filed on September 1, 1993.
ISSUE:
Are the "banjo" oval flask and long neck hexagon shaped
glass containers classifiable as containers for the conveyance or
packing of goods?
LAW AND ANALYSIS:
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. Heading
7010, HTSUS, provides for [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.
This is a use provision and as such, according to Additional
U.S. Note 1(a), HTSUS, [i]n the absence of special language or
context which otherwise requires-- 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. Therefore, the principal use of the articles
at the time of importation in the United States, will determine
the article's classification.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs)
may be consulted. The ENs, although not dispositive nor legally
binding, provide a commentary on the scope of each heading of the
HTSUS and are generally indicative of the proper interpretation
of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128,
(August 23, 1989). EN 70.10, pgs. 933-34 states, in pertinent
part, 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.).
[t]hese containers remain in this heading even if they are
ground, cut, sand-blasted, etched or engraved, or decorated
(this applies, in particular, to certain perfume or liqueur
bottles), banded, wickered or otherwise trimmed with various
materials (wicker, straw, raffia, metal, etc.); they may
also have tumbler-caps fitted to the neck. They may be
fitted with drop measuring devices or may be graduated,
provided that they are not of a kind used as laboratory
glassware.
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 mould 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 screw
stoppers...
In Headquarters Ruling Letter (HRL) 087359, dated August 8,
1990, Customs created a scope for the class of glass containers
commercially used to convey solid or liquid products. The ruling
stated, in pertinent part, that:
the key phrase in this instance is "commonly used
commercially for the conveyance" of liquids. The root word
of "commercially" is commerce which is described as the
exchange or buying and selling of commodities. Webster's
Third New International Dictionary, (1986) and The Random
House Dictionary of the English Language, (1983). The root
word of "conveyance" is convey which is described as to
carry, bring or take from one place to another; transport;
bear. The Random House Dictionary of the English Language,
(1983) and Webster's Third New International Dictionary,
(1986).
Therefore, for a glass container to be classifiable under
heading 7010, HTSUS, as a container for the packing or conveying
of goods, it must be part of the exchange or buying and selling
of commodities and it must be used to convey a product to a
consumer who then uses the product and then discards the
container.
We are of the opinion that the distribution of the
containers from the importer to distributors who then sell all of
the containers to various food packers indicates that the
containers are used to commercially convey food stuffs to a
consumer. Additionally, the containers' lack of decoration, or
uncommon lid indicate that they are the type of containers that,
when emptied, will be discarded by the consumer. Finally, the
containers are made of ordinary glass by pressure in a mold, have
a large opening, a short neck, and a flange. Therefore, the
containers are classifiable in heading 7010, HTSUS, specifically
subheading 7010.90.50, HTSUS.
HOLDING:
The "banjo" oval flask and long necked hexagon shaped
sauce jars are classifiable in subheading 7010.90.50, HTSUS, as
containers for the conveyance or packing of goods.
The protest should be granted. 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