CLA-2 RR:CR:GC 959942 PH
Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105
RE: Protest 2809-96-101231; 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); HRLs 959639; 959941; 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 2809-96-101231, 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 the following glassware:
Item B3589 (Sole 500 [ml.]), a tall, narrow (elongated)
article with a cylindrical shape the diameter of which, at
the top of the cylindrical portion, gradually diminishes to
a neck, a long narrow neck, small opening, and a rim; and
Item 05179 (Bellissima 500 [ml.]), a tall, narrow
(elongated) article with a cylindrical shape (the
cylindrical portion of this item is longer than that of item
B3589) the diameter of which, at the top of the cylindrical
portion, diminishes to a neck, a long narrow neck, small
opening, and a rim.
Glassware under the two December 28, 1995, entries and the
January 4, 1996, entries is not described because the protest was
untimely as to those entries (see below) (for future reference,
classification of items in the untimely protested entries should
be in accordance with HRLs 959639, dated October 21, 1997, HRL
959941, dated October 27, 1996, and this ruling). Information is
available only on the described glassware; based on the entry
documentation in the file for one of the December 28, 1995
entries (... 490-2), 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.
Four entries, of December 28, 1995, through January 7, 1996,
are included in the protest. The first three entries (two of
December 28, 1995, and one of January 4, 1996) were liquidated on
June 14, 1996, and the other entry (of January 7, 1996) was
liquidated on June 21, 1996.
On September 13, 1996, the importer protested, stating in
block 9 of the protest form ("DETAILED REASONS FOR PROTEST AND/OR
FURTHER REVIEW"):
We 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 subheadings, as of the time under
consideration, are as follows:
7010.92.50: [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, of a capacity: ... [e]xceeding
0.33 liter but not exceeding 1 liter:
...[o]ther containers (with or without their
closures).
Goods classifiable under subheading 7010.92.50 receive duty-free
treatment.
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 1996 general column one rate of duty for goods classifiable
under subheading 7013.39.20 is 28.5% 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 two December 28, 1995,
entries and the January 4, 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 these
entries. As to the January 7, 1996, entry (liquidated June 21,
1996), the protest was timely (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. 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 cases, 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 HRLs 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
is as follows. Both articles appear to be manufactured by
automatic machines from ordinary glass. Both articles are
elongated bottles with small openings, long necks and, although
they have rims, are 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, and the elongated
shape of the bottles. 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.
Both 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 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" and "jugs"). Accordingly, items B3589 and 05179 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, HTSUS.
HOLDINGS:
(1) The protest was untimely as to the two December 28,
1995, entries and the January 4, 1996 entry (19 U.S.C.
1514(c)(3)(A); 19 CR 174.12(e)).
(2) Items B3589 and 05179 are classifiable as glassware of
a kind used for table (other than drinking glasses) or kitchen
purposes, in subheading 7013.39.20, HTSUS.
The protest is DENIED (as to the two December 28, 1995
entries and the January 4, 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