CLA-2 RR:CR:GC 959637 PH
Port Director
U.S. Customs Service
C/O Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest 1001-95-110328; various glass containers; conveyance
or packing of goods; preserving jars of glass; glassware for
table, kitchen, toilet, office, indoor decoration; household
glass storage articles; wire bail and rubber ring closure system;
principal use; eo nominee; 7010; 7013; EN 70.10; EN 70.13; U.S.
Additional Note 1(a); T.D. 96-7; HQs 087359; 956526; 957873;
Myers v. United States, 969 F. Supp. 66 (CIT 1997); Group
Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993);
Commercial Aluminum Cookware Co. v. United States, 938 F. Supp.
875 (CIT 1996); Kraft, Inc, v. United States, 16 CIT 483 (1992);
G. Heilman Brewing Co. v. United States, 14 CIT 614 (1990);
United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172,
536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976)
Dear Port Director:
This is in response to Protest 1001-95-110328, which
pertains to the tariff classification of certain articles of
glass under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples and product brochures were submitted for our
review.
FACTS:
The merchandise consists of various pieces of glassware, as
described in the following table (based on the invoices for the
merchandise, a catalogue submitted by the protestant, and samples
if provided). Entered value for the glassware ranges from $.23
to $2.29 per piece. Each piece appears to be of heavy glass.
According to the protestant, the glassware is made on automatic
forming machines of ordinary, recyclable glass, with many made of
previously recycled glass. Mold seams appear on the sides of all
of the glassware and identifying symbols and container capacities
are molded into the bottoms of many. Each piece of glassware is
imported empty, with a closure or stopper.
Code/Ref.
Denomination
(Cat. Page #) Description
333 [2]
Bote Octogonal 106
cc
(40) Octagonal shape, green
tint, short neck, lip, wide
opening, lid of cork (2nd
model has lid of glass and
cork (with knurl on top)), 115
ml. (Sample provided.)
333/2 [2]
Bote Galaxy 106 cc
(40) Four sides, green tint,
short neck, lip, wide opening,
lid of cork (2nd model has lid
of glass and cork (with knurl
on top)), 110 ml. (Sample
provided.)
333/3 [2]
Bote Delta 106 cc
(40) Three sides, green tint,
short neck, lip, wide opening,
lid of cork (2nd model has lid
of glass and cork (with knurl
on top)), 110 ml.
394
Botella Anis
(38) Cylindrical shape,
diamond pattern embossing,
green tint, neck of moderate
length, rim, lid of cork, 45
ml.
394/1
Gaseosa Anis
("Miniatura Anis
Gaseosa" in
catalogue)
(36) Cylindrical shape,
diamond pattern embossing,
green tint, neck of moderate
length, wire bail and rubber
ring closure system, 50 ml.
444
Botella Picasso
(38) Four sides (rounded
edges), facing triangle
pattern embossing, green tint,
rim, neck of moderate length,
lid of cork, 45 ml.
578
Bote Trabuco Peq.
(40) Cylindrical shape, green
tint, short neck, lip, wide
opening, lid of cork, 45 ml.
581 [2]
Licorera Romos
(41) Short broad-based (bell-shaped), untinted, short neck,
lip, lid of cork (2nd model
has lid of glass and plastic
(with globe-shaped top)), 250
ml. (Sample of model with lid
of glass and plastic
provided.)
582 [2]
Licorera Pala Alta
(41) Short wide (flask-shaped), untinted, neck of
moderate length, lip, lid of
cork (2nd model has lid of
glass and plastic (with globe-shaped top)), 200 ml.
583 [2]
Licorera Cuadrada
(41) Four sides, untinted,
short neck, lip, lid of cork
(2nd model has lid of glass
and plastic (with globe-shaped
top)), 265 ml. (Sample
provided, broken when received
in this office.)
584/1
Licorera Reloq
Peq. ("Botella
Reloq Pequena" in
catalogue)
(44) Two sides (rounded
circular shape), green tint
(sample is untinted), short
neck, lip, lid of cork, 125
ml. (Sample (with different
lid) provided.)
586/1
Botella Pala Baja
Peq.
(44) Two wide sides (with
other sides narrow, rounded
edges), green tint (sample is
untinted), short neck, lip,
lid of cork, 125 ml. (Sample
provided.)
657
Bote Trabuco Grde.
(39) Cylindrical shape, green
tint, short neck, lip, wide
opening, lid of cork, 130 ml.
702
Bote Cilindrico
("Bote Redondo
S/Mini" in
catalogue)
(40) Cylindrical shape, green
tint, short neck, lip, wide
opening, lid of cork, 25 ml.
702/2
Bote Octogonal
S/Mini
(40) Octagonal shape, green
tint, short neck, lip, wide
opening, lid of cork, 30 ml.
730
Bote Hexagonal
(39) Hexagonal shape (bottom,
top, and four sides form
hexagon, front and back are
flat), green tint, short neck,
lip, wide opening, lid of
cork, 55 ml. (Sample
provided, broken when received
in this office.)
730/2
Bote Gal
(39) Ink bottle-like shape,
green tint, short neck, lip,
wide opening, lid of cork, 55
ml.
764
Bote Ollita
(39) Vase shape, 2 small ear-like handles, green tint,
short neck, lip, wide opening,
lid of cork, 35 ml.
775
Vinagera Venecia
(42) Cruet shape, 1 handle,
green tint, neck of moderate
length, pouring lip (with
channel), lid of glass and
cork stopper, 225 ml.
784
Botella Fragola
106 cc
(33) Four sides, tall, green
tint, neck of moderate length,
lip, lid of cork, 120 ml.
784/2
Botella Piramide
(33) Four sides, with sides
diminishing in width upwards,
tall, green tint, neck of
moderate length, lip, lid of
cork, 120 ml.
785 [2]
Botella Lagrima
(32, 33) Tear-shape (rounded
broad base, gradually
narrowing to neck), tall,
green tint, neck of moderate
length, lip, lid of cork (2nd
model has lid of glass and
cork (with rounded handle
tapered upwards)), 120 ml.
785/1 [2]
Botella Bolas
(32, 33) Conical shape
(diminishing in width upwards,
with sides narrowing and
widening to form 8 balloon-like shapes), tall, green
tint, neck of moderate length,
lip, lid of cork (2nd model
has lid of glass and cork
(with rounded handle tapered
upwards)), 120 ml.
785/2 [2]
Botella Conica
(32, 33) Conical shape
(diminishing in width
upwards), tall, green tint,
neck of moderate length, lip,
lid of cork (2nd model has lid
of glass and cork (with
rounded handle tapered
upwards)), 120 ml.
788 [2]
Bote Corazon
(34) Heart shaped (with flat
base), untinted, short neck,
lip, lid of cork (2nd model
has lid of glass and cork
(with knurl on top)), 225 ml.
(Sample provided, broken when
received in this office.)
789 [2]
Botella Piramide
(33) Four sides (with sides
diminishing in width upwards),
tall, green tint, short neck,
lip, lid of cork (2nd model
has lid of glass and cork
(with globe shaped handle)),
200 ml.
789/1
Botella Piramide
Vorcida ("...
Retorcida" in
catalogue)
(33) Four sides (with sides
diminishing in width upwards
and twisting 1/4 turn), tall,
green tint, short neck, lip,
lid of glass and cork (with
rounded handle tapered
upwards), 200 ml.
1007
Figura Cerdito
Hucha
(43) Pig shape, green tint,
oblong opening (similar to a
"piggy" bank opening) on top,
500 ml.
2000
Jarra Uvas Griega
("... Grande" in
catalogue)
(18) Pitcher shape (wide base,
narrowing then widening
(grape-like pattern embossing
in wide part) before narrowing
to neck), tall, green tint,
handle, long neck, pouring lip
(with channel), lid of cork,
750 ml.
2002
Botella Naranjas
(17) Globe shape tapering to
neck (light embossing), tall,
green tint, long neck, rim,
lid of cork, 750 ml.
2017
Botella Giralda
Sevilla
(27) Four sides (embossing to
represent a building on the
sides), tall, green tint, neck
of moderate length (with neck
also of 4 sides), rim, lid of
cork), 800 ml.
2018 [2]
Botella Torre
Eiffel
(28, 29) Four sides (with
sides diminishing in width
upwards) in shape of, and with
embossing to represent, the
Eifel Tower, tall, green tint,
long neck, rim, lid of cork
(2nd model has lid of glass
and plastic (with globe shaped
handle)), 800 ml.
2021
Botella Serpiente
(28) Conical in shape of, and
with raised work representing,
a serpent, tall, green tint,
long neck (with neck tapering
from serpent shape to
cylindrical shape), rim, lid
of cork, 750 ml. (Sample
provided.)
2030
Botella Tres Bolas
(17) Conical shape with sides
narrowing and widening to form
3 balloon-like shapes tapering
to neck, tall, green tint,
neck of moderate length, rim,
lid of cork, 750 ml.
2050
Botella Nervio
(1) Conical shape with faint
embossing tapering to neck,
very tall, green tint, long
neck, rim, lid of cork, 500
ml.
2093 [2]
Botella Moscatel
Oro
(17) Cylindrical shape, then
gradual tapering to neck with
embossing appearing to
represent grapes, green tint,
long neck, rim, lid of cork
(2nd model has a wire bail and
rubber ring closure system),
750 ml.
2109
Botella Cuello
Desplazado
(27) Four sides with neck
rising from side instead of
center, tall, green tint, long
neck, rim, lid of cork, 750
ml.
3025
Vinagera Sandra
(42) Global shape with one
handle, green tint, neck of
moderate length, pouring lip
(with channel), lid of cork,
450 ml. (Sample provided,
handle broken when received in
this office.)
Two entries dated April 17 and 22, 1995, are included in the
protest. The entries were liquidated on September 8, 1995, with
classification under subheading 7013.39.20, HTSUS.
On December 7, 1995, the importer filed the protest. According to the protest, the protestant does not process or fill
the pieces of glassware; the protestant resells them to
commercial processors which use the glassware as containers and
fill them with one of several products, including dried food,
bath oils or salts, body creams, etc. After the processors fill
the pieces of glassware, the processors sell the products to
retailers or mail-order catalogue houses, which sell the products
to consumers.
The protestant provides sales literature from three of the
protestant's commercial purchasers of the glassware, stated to
represent 78% of the protestant's sales. The literature of the
first purchaser depicts several of the listed pieces of glassware
(items 2021, described as "SERPENT JAR ... tall (over 1 foot
high) coiled Italian glass storage jar with cork stopper is
filled with almost 1.5 pounds of ten-bean soup ...", and 2030,
described as "THREE BULB ROCK SUGAR CRYSTALS BOTTLE ... over 11"
high hand-blown, Spanish bottle [with] almost 1.5 lbs. of pure
rock candy crystals[,] [b]eautiful, decorative and useful").
Although these items and other similar "speciality" glass bottles
emphasize the nature of the glass bottle, items in the catalogue
packed in conventional bottles do not (e.g., "CAJUN SOUP MIX
[p]acked inside this 750 ml bottle is a 1.5 pound assortment of
beans ..."). The literature of the second purchaser concerns
glassware not covered in the protest. The literature of the
third purchaser shows two items (784 and 785 (cork lids), each
filled with massage oil and herbs and decorated with ribbons).
The literature of this purchaser also offers additional, unfilled
bottles, including items 775, 784, 784/2, 785, 785/1, and 785/2.
On the basis of this evidence, the protestant argues that
the containers are "of a kind" used to package or convey
products, including food and toilet preparations, and that they
are clearly not glassware used for table, kitchen toilet, office,
indoor decoration or similar purposes. The protestant cites
Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993),
for the proposition that the competing tariff provisions are
"use" provisions subject to Additional Note 1(a), HTSUS. The
protestant notes the Harmonized Commodity Description And Coding
System Explanatory Notes (ENs) for headings 7010 and 7013, two
rulings, HQ 957873 dated November 21, 1995, and HQ 956526 dated
July 26, 1994, and T.D. 96-7 in support of its arguments. The
protestant also cites 19 U.S.C. 1504(a) in arguing that those
entries which were liquidated more than one year after entry for
which no notices of extension were issued must be deemed
liquidated as asserted at the time of entry by the importer of
record.
The competing headings, as of the time under consideration,
are as follows:
7010: [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.
The 1995 general column one rate of duty for goods classifiable
under subheading 7010.90.20 ( ... containers (with or without
their closures) of a kind used for the conveyance or packing of
perfume or other toilet preparations; ...: [p]roduced by
automatic machine) is 3.5% ad valorem. Goods classifiable under
subheading 7010.90.50 ( ... [o]ther: ... [o]ther containers (with
or without their closures)) receive duty-free treatment.
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 1995 general column one rate of duty for goods classifiable
under subheading 7013.39.20 (... [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) is 29.2% ad valorem. The 1995 general column
one rate of duty for goods classifiable under subheading
7013.99.40 (... [o]ther glassware: ... [o]ther: ... [o]ther: ...
[o]ther: [v]alued not over $0.30 each) is 38% ad valorem. The
1995 general column one rate of duty for goods classifiable under
subheading 7013.99.50 (... [o]ther glassware: ... [o]ther: ...
[o]ther: ... [o]ther: ... [v]alued over $0.30 each but not over
$3 each) is 30% ad valorem.
ISSUE:
Are the pieces of glassware described in the FACTS
containers of a kind used for the conveyance or packing of goods,
preserving jars of glass, or glassware of a kind used for
decoration or similar purposes?
LAW AND ANALYSIS:
Initially, we note that the protest 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)). As for the
protestant's argument that entries which were liquidated more
than one year after entry for which no notices of extension were
issued must be "deemed" liquidated as asserted under 19 U.S.C.
1504(a), that argument is inapplicable to the protested entries
(because liquidation of the two protested entries was within 1
year of the date of entry).
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.
The 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 under the System. 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 provision for preserving jars of glass in heading 7010
is an eo nomine provision (Myers v. United States, 969 F. Supp.
66 (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)).
Merchandise which is properly classifiable under heading 7010
cannot be classified under heading 7013, because of the specific
parenthetical provision to that effect in heading 7013 (Myers,
supra).
Except in regard to items 394/1 and the model of item 2093
with a wire bail and rubber ring closure system (addressed
below), 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 or kitchen decoration or
similar purposes in heading 7013) are "use" provisions (see
above). 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 CFR 10.131 - 10.139); as stated above,
the competing provisions are principal use provisions, not actual
use provisions).
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. 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) and
the above cases to heading 7010, 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.
The EN for heading 7010 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.
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 or the class "glassware of a kind used
for table or kitchen purposes; glass storage articles" in heading
7013. According to the "EFFECTIVE DATE" section of T.D. 96-7,
"[a]ny changes in tariff classification resulting from the
implementation of these guidelines and any revocation of
inconsistent rulings will be effective regarding merchandise
entered for consumption or withdrawn from a warehouse for
consumption on or after February 2, 1996." The protested entries
were prior to February 2, 1996. However, insofar as the criteria
described in T.D. 96-7 for indicating whether glassware qualifies
as part of the class of containers used for the conveyance or
packing of goods or for table or kitchen purposes as glass
storage articles are concerned, those criteria were compiled from
Court decisions, ENs, and rulings in existence prior to the
effective date of the T.D. (e.g., the criteria in the T.D. for
glassware of a kind used for table or kitchen purposes; glass
storage articles, were used in HQs 953952, dated September 21,
1994, and 956470, dated September 28, 1994). Therefore, the
criteria in T.D. 96-7 are relevant for determining the
classification of the glassware under consideration.
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 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 merchandise
(except item 394/1 and the model of item 2093 with a wire bail
and rubber ring closure system, addressed separately below) is as
follows. The first criterion is inconclusive; some, but not all,
items have large openings and/or short or no necks, most have
lips or flanges (but they are merely raised and are not
configured to "hold" a lid or cap, other than a cork or similar
closure), all are made of ordinary glass and are stated to be
manufactured by automatic machines. An ultimate purchaser's
primary expectation would not be to discard or recycle the
container after the conveyed or packed goods are used, as
evidenced by the fact that the protestant's evidence shows many
of the containers offered for sale empty; further, the lids allow
for repetitive, extremely easy, opening and closing, a feature
indicating reusability. The protestant states that the
containers are sold from the importer to a wholesaler/distributor
who then packs the container with goods, but the evidence
provided by the protestant demonstrates the sale of the
containers empty; further, many of the containers are of a kind
sold to the ultimate purchaser empty (in this regard we note
that, as emphasized above, the competing tariff provisions are
principal use provisions, not actual use provisions). The
evidence provided by the protestant shows that the container is
emphasized over the goods packed in the container. The criterion
of commercial use to convey foodstuffs, etc., is addressed by the
other criteria (see above and below). There is no evidence that
the containers are capable of being used in the hot packing
process. The evidence available is that rather than using the
container to pack and convey goods to a consumer who discards the
container after its initial use, the containers are offered for
sale empty, the ease of opening and closing the containers makes
them very reusable, and the containers, and not their contents,
are emphasized to customers. On the basis of these criteria, we
conclude that each of items described in the FACTS, except for
item 394/1 and the model of item 2093 with a wire bail and rubber
ring closure system, is not principally used for the conveyance
or packing of goods. Classification under heading 7010 is
precluded.
Items 394/1 and the model of item 2093 with a wire bail and
rubber ring closure system are classifiable in accordance with
Myers v. United States, supra. That case dealt with the
"preserving jars of glass" provision in heading 7010, as applied
to certain jars with wire bail and rubber ring closure systems.
Finding the tariff term "preserving jars of glass" in heading
7010, HTSUS, to be an eo nomine provision, the Court held that
the jars (with wire bail and rubber ring closure systems) were
classified under that heading. 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.
We have ruled that jars such as those under consideration
are classified under subheading 7013.39.20, HTSUS (see HQs
953282, 088020, 951721, 956470, 953952 and T.D. 96-7). However,
based on Myers and the criteria therein, we conclude that items
394/1 and the model of item 2093 with a wire bail and rubber ring
closure system are described in the eo nomine provision
"preserving jars of glass" in heading 7010, HTSUS. Accordingly,
we must follow Myers in this protest. Items 394/1 and the model
of item 2093 with a wire bail and rubber ring closure system are
classified under subheading 7010.90.50, HTSUS. The other
containers in this case do not meet the criteria in Myers and are
not "preserving jars of glass."
The remaining items are classified under heading 7013.
Items 333, 333/2, 333/3, 581, 582, 586/1, 657, 784, 784/2, 785,
785/1, 785/2, 789, and 789/1 are principally used to store food
material and are classifiable as 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, in subheading 7013.39.20, HTSUS.
Items 775 and 3025 are cruets, item 2000 is a pitcher, and
items 2002, 2017, 2018, 2021, 2030, 2050, 2093 (the model with a
cork lid), and 2109 are large decorative bottles. Items 775,
3025, and 2000 are clearly principally used to store food
material (see EN 70.13, which incudes "pitchers" and "oil or
vinegar cruets" among the exemplars listed as being covered by
heading 7013 under table or kitchen glassware). Items 2002,
2017, 2018, 2021, 2030, 2050, 2093 (the model with a cork lid),
and 2109 are of a kind principally used for table or kitchen
purposes (see EN 70.13, which includes "decanters" ("decanter" is
defined as "a decorative glass bottle, generally with a stopper,
from which wine, etc. is served after being decanted" (Webster's
New World Dictionary (3rd Coll. Ed.) (1988), p. 356)) and "jugs"
among the exemplars listed as being covered by heading 7013 under
table or kitchen glassware). They are classifiable as 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, in subheading 7013.39.20, HTSUS.
Items 394, 444, 578, 702, 702/2, 730, 730/2, and 764 are
very small decorative bottles, items 583 and 584/1 are small
decorative bottles, and items 788 and 1007 are bottles shaped to
represent a pig or a heart. Each of items 394, 444, 578, 583,
584/1, 702, and 702/2 could conceivably be used to store food
material or for toilet decoration or similar purposes (see EN
70.13, which includes "perfume bottles" among the exemplars
covered by heading 7013 under toilet articles). In our opinion,
these items are principally used for the latter; however, for the
reason stated in the parenthetical sentence at the end of this
paragraph, definitive classification under subheading 7013.39 or
7013.99 is not necessary for decision of this protest). We
conclude that items 730, 730/2, and 764 are of a kind principally
used for office decoration or similar purposes (see EN 70.13,
which includes "paperweights", "inkwells", and "containers for
pins" among the exemplars covered by heading 7013 under office
glassware). We conclude that items 788 and 1007 are of a kind
principally used for indoor decoration or similar purposes (see
EN 70.13, which includes "fancy articles (animals, flowers,
foliage, fruit, etc.)" among the exemplars covered by heading
7013 under glassware for indoor decoration). These items are
classifiable as other glassware, other, other, other, in
subheading 7013.99.40 or 7013.99.50, HTSUS, depending on value.
(Because these items were liquidated with classification in
subheading 7013.39.20, HTSUS, with a rate of duty less than the
rates of duty for subheading 7013.99.40 or 7013.99.50, this
determination has no effect on the liquidated classification.)
The two rulings cited by the protestant are distinguished
from this case. In the case of HQ 956526 dated July 26, 1994, as
stated in the ruling, the evidence indicated that the containers
are used to commercially convey food stuffs to a consumer and the
lack of decoration or uncommon lid indicated that the jars were
of a kind which would be discarded by the consumer when emptied.
Furthermore, a review of the file for HQ 956526 shows that the
jars were low-cost ($.055 to $.15 each) jars with twist-on and
off covers designed for use in the hot pack process. Thus, the
containers in HQ 956526 differ from the containers in this case
in important aspects, aspects which are elements of 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 described above.
In the case of HQ 957873 dated November 21, 1995, the jars were
created from unique specifications created specifically for the
importer's bath products and importer was the only importer of
the jar. That is, as stated in HQ 957873, "the containers do not
pass through any other channel of trade, nor are they sold in any
other manner." Thus containers in HQ 957873 are, as stated in
the ruling "principally used for the conveyance or packing of
perfume or other toilet preparations[.]"
HOLDING:
The pieces of glassware described in the FACTS (except for
items 394/1 and the model of item 2093 with a wire bail and
rubber ring closure system) are not containers of a kind used for
the conveyance or packing of goods and are classifiable under
heading 7013. Items 333, 333/2, 333/3, 581, 582, 586/1, 657,
775, 784, 784/2, 785, 785/1, 785/2, 789, 789/1, 2000, 2002, 2017,
2018, 2021, 2030, 2050, 2093 (the model with a cork lid), 2109,
and 3025) are classifiable in subheading 7013.39.20, HTSUS.
Items 394, 444, 578, 583, 584/1, 702, 702/2, 730, 730/2, 764,
788, and 1007 are classifiable in subheading 7013.99.40 or
7013.99.50, HTSUS (depending on value) (because these items were
liquidated with classification in subheading 7013.39.20, HTSUS,
with a rate of duty less than the rates of duty for subheading
7013.99.40 or 7013.99.50, this determination has no effect on the
liquidated classification). Items 394/1 and the model of item
2093 with a wire bail and rubber ring closure are preserving jars
of glass and are classifiable under heading 7010 in subheading
7010.90.50, HTSUS (Myers v. United States, 969 F. Supp. 66 (CIT
1997)).
The protest is GRANTED IN PART (as to items 394/1 and the
model of item 2093 with a wire bail and rubber ring closure
system) and DENIED IN PART (as to all other items). In
accordance with Section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed, with the Customs Form
19, 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
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division