CLA RR:TC:MM 958477 MMC
Mr. Lars Seyfrid
LB Plus, Inc.
436-B Taylor Ave
Alameda, CA 94501
RE: DD 813644; Brown glass bail and trigger closure bottles;
Additional U.S. Note 1(a); EN 70.10; Group Italglass U.S.A. v.
U.S., Lenox Collections v. U.S., Kraft, Inc, v. U.S., G. Heilman
Brewing Co. v. U.S., U.S. v. Carborundum Company; T.D. 96-7;
HRLs 954792, 087359.
Dear Mr. Seyfrid:
The is in response to your letter of September 13, 1995,
requesting reconsideration of DD 813644 dated September 5, 1995,
in which the District Director of Customs, Ogdensburg, NY,
classified glass bail and trigger closure (flip top) brown
bottles under subheading 7013.39.20 of the Harmonized Tariff
Schedule of the United States (HTSUS). Descriptive literature
was submitted for our review.
FACTS:
The brown glass bottles, referred to as "Bierflasche", have
a porcelain or plastic stopper attached to a metal snap closure.
They hold either 500 or 1000 ml, have cylindrical shaped bodies
and gradually rounded shoulders which taper to a neck. The neck
is heavily reinforced to accommodate a wire bail closure. The
porcelain or plastic stopper compresses a small rubber seal to
the mouth of the bottle when the wire bail closure is in a closed
position.
You state that the bottle is primarily used by micro-breweries which fill them with beer for sale to the public. They
serve no use in a household nor do they have any use as a
decorative item. When purchased filled, the bottles require a
substantial deposit which is assessed to encourage the bottles
return for reuse by the micro breweries.
ISSUE:
Whether the bail and trigger closure brown glass bottles are
classifiable as containers of a kind used for the conveyance or
packing of goods 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). 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. 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..........................................................Free
7013.39.20 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....................................28.5%
GRI 6, HTSUS, provides that for legal purposes, the
classification of goods in the subheadings of a heading shall be
determined according to the terms of those subheadings and any
related subheading notes and, mutatis mutandis, to the above
rules, on the understanding that only subheadings at the same
level are comparable. For the purposes of this rule, the
relative section, chapter and subchapter notes also apply, unless
the context otherwise requires.
In understanding the language of the HTSUS, Customs consults
the Harmonized Commodity Description and Coding System
Explanatory Notes (ENs). The ENs, although not dispositive,
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 that they should
be consulted for guidance in determining the proper
interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127,
35128 (August 23, 1989). EN 70.10, pg. 933-934, states, in
pertinent part, that:
This 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:
(A) Carboys, demijohns, bottles (including syphon vases),
phials and similar containers, of all shapes and sizes, used
as containers for chemical products (acids, etc.) beverages,
oils, meat extracts, perfumery preparations, pharmaceutical
products, inks, glues, etc.
These articles, formerly produced by blowing, are now almost
invariably manufactured by machines which automatically feed
molten glass into moulds where the finished articles are
formed by the action of compressed air. They are usually
made of ordinary glass (colourless or coloured) although
some bottles (e.g., for perfumes) may be made of lead
crystal, and certain large carboys are made of fused quartz
or other fused silica...
In Headquarters Ruling Letter (HRL) 087359, dated August 8,
1990, Customs explained the phrase "commercially used to convey",
as used in the ENs, when referring to 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).
Based on this analysis, the scope of the class "containers used
for the conveyance or packing of goods" includes glass articles
which are part of the exchange or buying and selling of
commodities, and can be used to convey or pack a product to a
consumer who then uses the product and discards the container.
Subheading 7013.39 provides for the class "glassware of a
kind used for table or kitchen purposes". The scope of this
class includes articles principally used to hold or store other
articles in the home. Among these articles, certain glass
storage jars may be principally used in this fashion.
Both subheadings 7010.90.50 and 7013.39.20, HTSUS, are use
provisions. There are two principal types of classification by
use:
(1) according to the actual use of the imported article; and
(2) according to the use of the class or kind of goods to
which the imported article belongs.
Use according to the class or kind of goods to which the
imported article belongs is more prevalent in the tariff
schedule. A few tariff provisions expressly state that
classification is based on the use of the class or kind of goods
to which the imported article belongs. In Group Italglass
U.S.A. v. United States, USITR, 17 CIT 226, the court held that:
"the language in heading 7010, "of a kind used for" explicitly
invokes use as a criterion for classification and in heading
7010, principal use is controlling." As subheadings 7010.90.50
and 7013.39.20, HTSUS, contain the language "of a kind used for",
the principal use of a particular article will determine whether
it belongs to one of the classes or kinds of goods described by
heading 7010, or heading 7013.
When an article is classifiable according to the use of the
class or kind of goods to which it belongs, 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 at the time of importation determines
whether it is classifiable within a particular class or kind.
Therefore, we must ascertain how "bail and trigger closure brown
glass bottles" are principally used so we can determine whether
they belong to the class "glassware of a kind used for the
conveyance or packing of goods" or "glassware of a kind used for
table or kitchen purposes".
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual
tariff provisions. However, the U.S. Court of International
Trade (CIT) has provided factors, which are indicative but not
conclusive, to apply when determining whether particular
merchandise falls within a 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: Lenox Collections v. United States, No. 96-30
slip op. (CIT February 2, 1996), Kraft, Inc, v. United States,
USITR, 16 CIT 483, (June 24, 1992) (hereinafter Kraft); G.
Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6,
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.
For a further discussion of the scope of "containers used
for the conveyance or packing of goods" and "glassware of a kind
used for table or kitchen purposes: glass storage articles" as
well as a discussion of the principal use factors applied to
merchandise to determine whether it belongs to either of the
classes, see T.D. 96-7, published in the Federal Register dated
January 3, 1996, (61. Fed. Reg. 223,229) and the Customs
Bulletin dated January 17, 1996, (hereinafter T.D. 96-7).
In Lenox, the court ruled on the classification of a set of
small porcelain containers called the "Spice Village". Each
elaborately decorated container was shaped like a Victorian house
and came with a wood rack in which the articles could be
displayed. Customs had classified the articles in the class
"kitchenware". The importer believed they were classifiable in
the class "ornamental articles". Although, the set was
advertised as functional spice jars, and each had a named spice
on the outside and a fitted top to keep spices fresh, the court
referred to Additional U.S. Rule of Interpretation 1(a) and the
need to focus on the principal use of the class or kind of goods
to which an import belonged, not the principal use of the
specific import. To determine the class or kind of goods to
which the import belonged, the court examined the factors set
forth in the Kraft and Carborundum line of cases.
Although the subject containers were capable of holding
spices, the court found that the physical characteristics
suggested that they were principally used for decorative
purposes. According to the court, the containers failed to hold
spices as efficiently as their plainer counter parts which have a
grip area and a shaker top Based on the significant difference
in price between a plainer spice jar set and the Spice Village,
the court stated purchasers pay more for the Spice Village
because their ultimate expectation is to use them to adorn their
homes. The court found that the channels of trade in which the
merchandise moved failed to indicate whether the articles
belonged to the class "kitchenware" or "ornamental articles".
As to the environment of sale, although the court recognized that
the ads describe the Spice Village as both decorative and
functional, the court found that the ads stressed the decorative
nature of the articles. Finally, the court found that because
surveys indicated that 70% of the containers were used entirely
or primarily for decorative display, the Spice Village was used
principally for decorative purposes. Accordingly, even though
almost 30% of the Spice Village was used entirely or principally
in the kitchen for cooking, the principal use of the class or
kind of goods to which it belongs was "ornamental articles".
As the court did in the Lenox, Kraft and Carborundum line of
cases and as Customs directed in T.D. 96-7, we must examine the
principal use factors to determine whether the subject bottles
belong to the class "containers of a kind used for the conveyance
or packing of goods" or "glassware of a kind used for table or
kitchen purposes: glass storage articles". As a general rule, a
glass article's physical form will indicate its principal use and
thus to what class or kind it belongs. Should, however, an
exception arise and 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.
Customs is of the opinion that the physical form of bail and
trigger closure brown glass bottles, as well as the general
expectation of the ultimate purchasers, and the usage of the
merchandise, indicates they are described by subheading
7010.90.50, HTSUS. The subject bottles' glass is somewhat
thicker and it has a bail and trigger closure, both of which are
not typical of bottles generally used to commercially convey
beer. Typically a bottle used to commercially convey beer has a
crimped or screw top on either a threaded or thick lipped
opening. However, the shape, shouldered body and long neck, is
a shape associated with bottles generally used to commercially
convey beverages. This shape gives the bottle the overall
physical appearance of a bottle used to commercial convey
beverages. Additionally, the ultimate purchaser buys the
container to consume the beer and returns the bottle so that it
may again be used for that same purpose. No evidence was
provided indicating the environment of sale, the channel of trade
for the bottles or that these brown glass bail and trigger
closure bottles are primarily used for anything but the
commercial conveyance or packing of beer.
We note that in H.L. 954792 dated November 24, 1993, we held
that similar bail and trigger closure brown glass bottles where
classified as household articles of glass under subheading
7013.39.20, HTSUS. T.D. 96-7, specifically revoked HRL 954792
because the principles articulated in the ruling were not
consistent with those espoused in T.D. 96-7. In addition to
specific ruling revocations, T.D. 96-7 states that any additional
rulings not enumerated, but inconsistent with the principles
expressed in T.D. 96-7, are considered revoked by T.D. 96-7's
publication. As the principles espoused in DD 813644 are
inconsistent with T.D. 96-7, it is considered revoked.
However, based on the Lenox, Kraft and Carborundum line of
cases and Customs guidelines in T.D. 96-7, we are now of the
opinion that the brown glass bail and trigger closure bottles are
of the class "glassware of a kind used for the conveyance or
packing of goods" under subheading 7010.90.50, HTSUS.
HOLDING:
The bail and trigger closure glass jars are classified under
subheading 7010.90.50, HTSUS, as 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 with a free
column one rate of duty.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division
cc: Port Director, Ogdensburg, NY