CLA-2 RR:CR:GC 959941 PH
Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105
RE: Protest 2809-96-101228; various glass containers; conveyance
or packing of goods; preserving jars of glass; glassware for
table, kitchen, toilet, office, indoor decoration; household
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); 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); HRL 959639; untimely protest; 19
U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e); Myers v. United States,
CIT Slip Op. 97-75; Penrod Drilling Co. v. United States, 13 CIT
1005, 727 F. Supp. 1463 (1989), rehearing dismissed, 14 CIT 281,
740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d
406 (1991)
Dear Port Director:
This is in response to Protest 2809-96-101228, which
pertains to the tariff classification of certain articles of
glass under the Harmonized Tariff Schedule of the United States
(HTSUS). Pictorial representations were submitted for our
review.
FACTS:
The merchandise consists of various glassware, as described
in the following table (based on pictorial representations and
information obtained from the importer). Glassware under the
February 23, 1996, entry is not described because the protest was
untimely as to that entry (see below) (for future reference,
classification of items in the February 23, 1996, entry should be
in accordance with HRL 959639, dated October 21, 1997, copy
enclosed, and this ruling). Information is available only on the
described glassware; based on the entry documentation for the
February 23, 1996, entry, other glassware may have been imported
under the protested entries and may have been liquidated under
subheading 7010.91.50 or 7010.92.50, HTSUS, free of duty; this
ruling does not address whether the classification of such items
was correct.
Code/Ref.
Denomination &
Size
Description
B0378
Vaso Lubo
Spaghetti 2275
[ml.; unless
otherwise
indicated, this
figure represents
milliliters]
Cylindrical shape with
enlarged base ("spaghetti jar"
shape), tall, no neck, very
large opening with cork lid,
rim.
B0822
Vaso Barilotto
2000
Keg or barrel shape with rope
handle (rope goes around the
article), large opening, small
neck rises from side of
barrel, rim, spigot in top of
barrel opposite the opening.
B4300
Borgognotta RC 750
Cylindrical shape, then
gradual diminishing of
diameter to neck (standard
wine bottle shape), moderate
length neck, small opening,
rim.
B5348
Cono Nero 500
Conical shape (diminishing of
diameter upwards) (similar to
an Erlenmeyer flask in shape),
moderate length neck, small
opening, rim.
B5936
Obelisco 250
Four sides, width diminishes
upward and then enlarges to
same size as base, then
diminishes gradually to form
an obelisk shape, very short
or no neck, small opening.
[Picture very unclear.]
00574
Anfora Giglio 250
Six sides with one handle,
long cylindrical neck,
moderate sized opening, rim
(possibly with a pouring
channel) (similar to a pitcher
or cruet in shape).
00988
Vaso Trangolare
500
Three sides diminishing in
width upwards (creating
triangle sides), very short
neck, large opening, rim.
00990
Vaso Trangolare
750
Same as 00988 except for size.
02273
Uvina Mignon 40
Pitcher shape (wide base,
narrowing then widening
(appears to have grape-like
pattern embossing in wide
part) before narrowing to
neck, tall, handle, moderate
sized opening, moderate length
neck, pouring lip (with
channel), lid of cork.
05553
Cuore 250
Round base, diameter
diminishes then enlarges into
globular shape (larger than
base, appears to have
decorative embossing), short
neck, small opening, rim.
Four entries, of February 23 through April 9, 1996, are
included in the protest. The first entry was liquidated on June
14, 1996, and the other entries were liquidated on August 16,
1996, with classification of the protested articles under
subheading 7013.39, HTSUS.
On September 13, 1996, the importer protested, stating in
block 9 of the protest form ("DETAILED REASONS FOR PROTEST AND/OR
FURTHER REVIEW"):
I respectfully request a full duty refund for all glassware
classified at 7013. I request all merchandise classified at
7013 be reclassified at 7010/duty free. ...
The Customs Protest and Summons Information Report (Customs
Form 6445) prepared by the Import Specialist states that the
importer's position is that:
No imported bottles are dutiable and all bottles are
classifiable as 7010.92.50/Free. Importer claims that all
bottles are imported empty and sold to customers that fill
them. ...
Further review was requested and granted.
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.
Goods classifiable under subheading 7010.91.50 (... [o]ther, of a
capacity: [e]xceeding 1 liter: ...[o]ther containers (with or
without their closures)) or subheading 7010.92.50 (... [o]ther,
of a capacity: ... [e]xceeding 0.33 liter but not exceeding 1
liter: ...[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 1996 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 28.5% ad valorem. The 1996 general column
one rate of duty for goods classifiable under subheading
7013.39.50 (... [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 over $3
each: ... [o]ther: [v]alued over $3 but not over $5 each) is 15%
ad valorem. The 1996 general column one rate of duty for goods
classifiable under subheading 7013.39.60 (... [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 over $3 each: ... [o]ther: ... [v]alued
over $5 each) is 7.2% ad valorem.
ISSUE:
Was the protest timely and, if timely, is the glassware
classifiable as 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 as to the February 23, 1996, entry,
the protest was untimely (i.e., protest must be filed within 90
days after but not before the notice of liquidation (19 U.S.C.
1514(c)(3)(A); 19 CFR 174.12(e)); notice of liquidation was dated
June 14, 1996, and the protest was filed September 13, 1996, 91
days after the notice of liquidation (16 days in June, 31 days in
July, 31 days in August, and 13 days in September). For an
example of the judicial treatment of a protest filed 1 day after
the 90-day period for filing a protest, see Penrod Drilling Co.
v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing
dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed.
Cir. (T) 60, 925 F. 2d 406 (1991). The protest must be denied as
to the February 23, 1996, entry. As to the remaining entries,
the protest was timely filed (see above) and 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 provision for preserving jars of glass in heading 7010
is an eo nomine provision (Myers v. United States, CIT Slip Op.
97-75, decided June 17, 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).
The provision for preserving jars of glass in heading 7010
was considered in Myers, supra. That case concerned 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. 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, the glass containers have no ability to form
and maintain a hermetic seal, nor is there any indication that
the containers have potential for reuse as canning or preserving
jars (the pictorial representations are not clear enough to
indicate whether the containers are composed of thick glass).
The containers 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 (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. T.D. 96-7 is effective as to the protested entries (see
the "EFFECTIVE DATE" section of T.D. 96-7, according to which
"[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 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
is as follows. All of the articles appear to be manufactured by
automatic machines from ordinary glass. Item B4300 is similar in
shape to an ordinary wine bottle. It has a small opening,
moderate length neck, and is configured to hold a cork or similar
closure. An ultimate purchaser's primary expectation would be to
discard or recycle the article after the conveyed or packed goods
are used (note that although the article is configured for a cork
lid which allows for repetitive, extremely easy, opening and
closing, its physical shape is not at all out of the ordinary
(i.e., it is shaped like an ordinary wine bottle)). The
protestant states that the container is sold from the importer to
a customer who fills it, as its physical shape indicates (see
above), the item is of this kind (we emphasize, as stated above
(citing Italglass, supra), that the competing tariff provisions
are principal use provisions, not actual use provisions). There
is no evidence as to whether the container is emphasized over the
goods packed in it, but the physical form of the article (see
above) indicates that this is not so. 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 container is capable of being used in the hot packing
process. The physical form of the article (see above) indicates
that it is used to pack and convey goods to a consumer who
discards it after its initial use. On the basis of these
criteria, we conclude that this article is principally used for
the conveyance or packing of goods. The article is properly
classifiable under heading 7010 and, therefore, may not be
classified under heading 7013 (see above, citing Myers, supra).
Items B4300 is classifiable as a container of glass of a kind
used for the conveyance or packing of goods in subheading
7010.92.50, HTSUS.
Items B0378 and B0822 are large containers (2,000
milliliters) with unusual shapes, not at all like conventional
jars. Neither is configured to "hold" a lid or cap, other than a
cork or similar closure (additionally, item B0822 has a spigot).
Item B0378 is tall and has no neck, a very large opening, and a
rim. Item B0822 has a small neck, moderate sized opening, and a
rim. An ultimate purchaser's primary expectation would not be to
discard or recycle the articles after the conveyed or packed
goods, if any, are used, as evidenced by the shapes of the
articles (item B0378 in the shape of a "spaghetti" jar; item
B0822 similar to a beer keg), the fact that the openings are
configured only for a cork or similar lid, and such lids allow
for repetitive, extremely easy, opening and closing, a feature
indicating reusability, and the spigot in item B0822 that also
allows for repetitive and convenient reuse. The protestant
states that the containers are sold from the importer to a
customer who fills them (as emphasized above, the competing
tariff provisions are principal use provisions, not actual use
provisions). There is no evidence as to whether the containers
are emphasized over the goods packed in them, but the physical
form of the articles (see above) indicates that this is so. 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 physical form of the articles (see
above) indicates that rather than using the containers to pack
and convey goods to a consumer who discards them after their
initial use, the containers, and not their contents, are
emphasized to customers. On the basis of these criteria, we
conclude that these articles are not principally used for the
conveyance or packing of goods. Classification under heading
7010 is precluded.
Items B5348, 00574, and 02273 are similar in shape to
cruets, vases, or pitchers and item 05553 is a globular shaped
bottle with a base. Items B5348 and 05553 have small openings
and items 00574 and 02273 have moderate sized openings, item
00574 has a long neck, items B5348 and 02273 have moderate length
necks, and item 05553 has a short neck. Each item has a rim, but
none is configured to "hold" a lid or cap, other than a cork or
similar closure. An ultimate purchaser's primary expectation
would not be to discard or recycle the articles after the
conveyed or packed goods, if any, are used, as evidenced by the
fact that the items are configured only for a cork or similar
lid, and such lids allow for repetitive, extremely easy, opening
and closing, a feature indicating reusability, and that each
items is in the shape of a reusable storage article (B5348 like a
cruet or vase, 00574 like a pitcher or cruet with a handle, 02273
like a pitcher with a handle, and item 05553 with an unusual
decorative shape and appearing to have decorative embossing).
The protestant states that the containers are sold from the
importer to a customer who fills them, (as emphasized above, the
competing tariff provisions are principal use provisions, not
actual use provisions). There is no evidence as to whether the
containers are emphasized over the goods packed in them, but the
physical form of the articles (see above) indicates that this is
so. 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 physical form of the articles (see
above) indicates that rather than using the containers to pack
and convey goods to a consumer who discards them after their
initial use, the containers, and not their contents, are
emphasized to customers. On the basis of these criteria, we
conclude that these articles are not principally used for the
conveyance or packing of goods. Classification under heading
7010 is precluded.
Items B5936, 00988, and 00990 are jars with geometrical
shapes (3-sided, or 4-sided obelisk shape). They have very short
or no necks and the first has a small opening while the latter
two have large openings. Each has a rim and is not configured to
"hold" a lid or cap, other than a cork or similar closure. An
ultimate purchaser's primary expectation would not be to discard
or recycle the articles after the conveyed or packed goods, if
any, are used, as evidenced by the fact that each item is
configured only for a cork or similar lid, and such lids allow
for repetitive, extremely easy, opening and closing, a feature
indicating reusability, as well as the unusual geometrical shapes
of the items. The protestant states that the containers are sold
from the importer to a customer who fills them (as emphasized
above, the competing tariff provisions are principal use
provisions, not actual use provisions). There is no evidence as
to whether the containers are emphasized over the goods packed in
them, but the physical form of the articles (special geometrical
shapes) indicates that this is so. 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 physical form of the articles (see above) indicates that
rather than using the containers to pack and convey goods to a
consumer who discards them after their initial use, the
containers, and not their contents, are emphasized to customers.
On the basis of these criteria, we conclude that these articles
are not principally used for the conveyance or packing of goods.
Classification under heading 7010 is precluded.
All of the foregoing articles are classified under heading
7013. The protestant provides no evidence regarding the
principal use of the items, but many of the criteria used in the
analysis of the applicability of heading 7010 support principal
use as household storage articles (see above, e.g., lids (and in
one case, a spigot) allow for repetitive, extremely easy, opening
and closing; when sold filled, the physical form shows that the
container, not the contents, is emphasized; see also the criteria
stated in T.D. 96-7 for glassware of a kind used for table or
kitchen purposes (glass storage articles), and EN 70.13, which
specifically enumerates as exemplars of table or kitchen
glassware under this heading, "decanters", "pitchers", "jugs",
and "oil or vinegar cruets"). Accordingly, items B0378, B0822,
B5348, B5936, 00574, 00988, 00990, 02273, and 05553 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, in
subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS,
depending on value.
HOLDINGS:
(1) The protest was untimely as to the February 23, 1996
entry (19 U.S.C. 1514(c)(3)(A); 19 CR 174.12(e)).
(2) Item B4300 is classifiable as a container of glass of a
kind used for the conveyance or packing of goods in subheading
7010.92.50, HTSUS.
(3) Items B0378, B0822, B5348, B5936, 00574, 00988, 00990,
02273, and 05553 are classifiable as glassware of a kind used for
table (other than drinking glasses) or kitchen purposes, in
subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS,
depending on value.
The protest is GRANTED IN PART (as to item B4300) and DENIED
IN PART (as to all other items, and also as to the February 23,
1996, entry, due to untimely filing). 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
Enclosure