CLA-2 RR:CR:GC 959751 PH
Port Director
U.S. Customs Service
110 South 4th Street
Minneapolis, MN 55401
RE: Protest 3501-95-100418; glass containers; 4-sided jar with
cork lid; conveyance or packing of goods; preserving jars of
glass; glassware for table or kitchen decoration; household glass
storage articles; principal use; eo nominee; 7010; 7013; EN
70.10; EN 70.13; U.S. Additional Note 1(a); T.D. 96-7; Myers v.
United States, CIT Slip Op. 97-75; Group Italglass U.S.A., Inc.
v. United States, 17 CIT 226 (1993); 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); HRLs 087779; 953952; 957412
Dear Port Director:
This is in response to protest 3501-95-100418, which
pertains to the tariff classification of certain 4-sided jars of
glass with cork lids under the Harmonized Tariff Schedule of the
United States (HTSUS). Two samples (items 47-381 (« liter) and
47-382 (250 milliliters)) were submitted for our review.
FACTS:
The merchandise under protest consists of 4-sided glass jars
(the base of the jar forms a square), invoiced as "GLASS BOTTLE 1
LITER WITH CORK LID" (item 47-380), "GLASS BOTTLE « LITER WITH
CORK LID" (item 47-381), and "GLASS BOTTLE 250 ML WITH CORK LID"
(item 47-382). The sides of item 47-381 are approximately 5 by 2
3/4 inches and those of item 47-382 are approximately 3 « by 2
1/4 inches. The jars have round openings; that of item 47-381 is
approximately 1 inch in diameter, with a lip and small pouring
channel; that of item 47-382 is approximately 3/4 inch in
diameter, with a lip. The lids are of cork. The glass for both
items is quite heavy and has a green tint. According to the
invoices, the jars are imported empty with the corks. No
evidence is provided as to the use of the jars, although the
protestant states that they "... are used in the kitchen as
articles that hold various items for storage, such as oils,
macaroni items, rice, vinegars or spices." Value, according to
the invoices, was $.58 for item 47-380, $.49 for item 47-381, and
$.355 for item 47-382.
An entry of July 25, 1995, is included in the protest.
According to the entry summary, the importer classified the
merchandise under subheading 7010.90.50, HTSUS. In a Notice of
Action (Customs Form 29), dated November 7, 1995, Customs advised
that the entry was being "rate advance[d]", stating:
The merchandise was originally classified 7010.90.5030 at
free. These bottles are not usual packing containers and
can be reused in the home. The bottles are classified
7013.29.2000 at 29.2% on liquidation.
The entries were liquidated on November 24, 1995, with
classification under subheading 7013.29.20, HTSUS.
On December 14, 1995, the importer protested, noting that
the merchandise was described in the rate advance by Customs as
"drinking glasses, other than of glass-ceramics" and was
liquidated under subheading 7013.29.20. The protestant contends
that "... the goods should remain classified as originally
submitted ... under [subheading] 7010.90.5030 at free." Further
review was requested and granted.
The competing subheadings, as of the time under
consideration, are as follows:
7010.90.50: [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:
... [o]ther: ... [o]ther containers (with or
without their closures.
Goods classifiable under subheading 7010.90.50 receive duty-free
treatment.
7013.29.20 [g]lassware of a kind used for table,
kitchen, toilet, office, indoor decoration or
similar purposes (other than that of heading
7010 or 7018): ... [d]rinking glasses, other
than of glass-ceramics: ... [o]ther: ...
[o]ther: ... [v]alued over $0.30 but not over
$3 each.
The 1995 general column one rate of duty for goods classifiable
under subheading 7013.29.20 is 29.2% ad valorem.
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.
The 1995 general column one rate of duty for goods classifiable
under subheading 7013.39.20 is 29.2% ad valorem.
ISSUE:
Are the 1 liter, « liter, and 250 milliliter 4-sided glass
jars, each with cork lids, classifiable as containers of a kind
used for the conveyance or packing of goods, preserving jars of
glass, drinking glasses, 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 that the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
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 Harmonized Commodity Description And Coding System
Explanatory Notes (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 liquidated classification was in subheading 7013.29.20,
HTSUS (in view of the characterization in the Notice of Action of
the merchandise as "bottles [which] can be reused in the home",
it is probably that the intended liquidation was with
classification in subheading 7013.39.20, HTSUS). Subheading
7013.29.20 is for drinking glasses, other than of glass ceramics,
valued over $0.30 but not over $3 each. As the protestant
recognizes (in describing the merchandise as "... in bottle form,
with a cork top ..."), the merchandise is not within the term
"drinking glasses". See, EN 70.13, under table or kitchen
glassware, separately listing "drinking glasses" and "decanters",
"jugs", and "oil or vinegar cruets"; see also, HRL 957412, dated
August 1, 1995, setting forth the physical characteristics for
drinking glasses, which are not met by these jars.
The remaining competing classifications are under headings
7010 and 7013, HTSUS. Heading 7010, HTSUS, provides for glass
containers of a kind used for the conveyance or packing of goods,
preserving jars of glass, and certain closures. Heading 7013,
HTSUS, provides for glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar purposes, not
including glassware covered in heading 7010.
The provision for preserving jars of glass in heading 7010,
HTSUS, is an eo nomine provision (Myers v. United States, CIT
Slip Op. 97-75, decided June 17, 1997). The provision in heading
7010, HTSUS, "of a kind used" for the conveyance or packing of
goods is a "principal use" provision (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).
The provision for preserving jars of glass in heading 7010
was considered in Myers, supra. That case concerned certain jars
with wire bail and rubber ring closure systems. The Court found
the jars to be classifiable under the provision for "preserving
jars of glass" in heading 7010, HTSUS. 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.
In this case, although the walls of the jars are composed of
thick glass, the jar has no ability to form and maintain a
hermetic seal, nor is there any indication that the jar has
potential for reuse as a canning or preserving jar. The jars in
this case are not "preserving jars of glass" and may not be
classified under that provision.
The other 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.
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 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.
Customs has used the above criteria in classifying jars such
as those under consideration. See, e.g., 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 handle that was 12 3/4 inches tall and a round glass storage
jar with a cork stopper style cover that was 12 inches tall under
subheading 7013.39.20, HTSUS (see also, HRL 953952, dated
September 22, 1994, and the rulings cited therein, and Treasury
Decision (T.D.) 96-7 which, although not effective at the time of
the protested entry, sets forth Customs position as to headings
7010 and 7013, HTSUS, for containers of glass used for the
conveyance or packing of goods and glass storage articles). In
HRL 087779, Customs 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. ...
Similarly, the jars in this case are of a kind used (i.e.,
principally used) for table or kitchen purposes, i.e., household
storage articles, and not as "... containers of the kind commonly
used commercially for the conveyance or packing of liquids or of
solid products" (EN 70.10). In this regard, we note that the
protestant states that the jars "... are used in the kitchen as
articles that hold various items for storage, such as oils,
macaroni items, rice, vinegars or spices." The jars 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.
HOLDING:
The pieces of glassware described in the FACTS (1 liter, «
liter, and 250 milliliter 4-sided glass jars, each with cork
lids) are classifiable as glassware of a kind used for table
(other than drinking glasses) or kitchen purposes, in subheading
7013.39.20, HTSUS.
Because the rate of duty under the above classification is
the same as the liquidated rate, the protest is DENIED in full.
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