CLA-2 RR:CR:GC 961353 PH
Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105
RE: Protest 2809-97-101295; glassware; conveyance or packing of
goods; glassware for table, kitchen, toilet, office, indoor
decoration; household storage articles; principal use; 7010;
7013; U.S. Additional Note 1(a); T.D. 96-7; Group Italglass
U.S.A., Inc. v. United States; Kraft, Inc, v. United States; G.
Heileman Brewing Co. v. United States; United States v.
Carborundum Company
Dear Port Director:
This is in response to protest 2809-97-101295, 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
examination.
FACTS:
Three entries, dated March 4, 14, and 23, 1997, are included
in the protest against the classification of "all imported
glassware classified under subheading 7013.39.20 or 7013.39.60",
HTSUS. Glassware so classified in the March 4, 1997, entry is
described in the invoice as "05718P BOTT. TOLEDO 100 BP MB" and
"06139P BOTT FRANTOIO MARASCA 500 F VA". That in the March 14,
1997, entry is described in the invoice as "06686S VASO ESAGONO
LT 9 CTS MB" (classified in subheading 7013.39.60, HTSUS),
"06139P BOTT FRANTOIO MARASCA 500 F VA", "06508P BOTT. RAFFAELLO
500 F", "05718P BOTT. TOLEDO 100 BP MB", "06202P BOTT. ORA 500
BP", and "05153P BOTT. TRIANGOLARE 500 F". That in the March 23,
1997, entry is described in the invoice as "05325P BOTT. VECCHIA
ERA 250 F 14" and "01017S BOTT. PICNIC 1000 S MB". Unless
otherwise indicated, these articles were classified in subheading
7013.39.20, HTSUS. The foregoing articles are described in the
following table.
Code/Ref.
Denomination
Description
01017S
Bott. Picnic
1000 S MB
Short, wide bottle with four sides,
each side merges into round neck,
moderately long neck, wide rim, green
tint.
05153P
Bott.
Triangolare
500 F
Three sides, with the sides
diminishing in width upwards,
creating a triangular shape, base
forms a triangle with rounded edges,
tall, moderately long neck, rim.
05325P
Bott.
Vecchia Era
250 F 14
Four sides (or possibly cylindrical;
illustration unclear), increasing
slightly in width or diameter
upwards, square shoulders, moderately
tall, moderate neck, rim.
05718P
Bott. Toledo
100 BP MB
Four sides, with the sides
diminishing in width upwards, base
forms a square with rounded edges,
moderate neck, wide rim, green tint.
06139P
Bott.
Frantoio
Marasca 500
F VA
Four sides, moderately tall,
moderately long neck, rim, dark blue
in color.
06202P
Bott. Ora
500 BP
Round discus shaped body with a base
(rounded outward from the meeting
point with the body) almost as wide
as the diameter of the body, short
neck, rim.
06508P
Bott.
Raffaello
500 F
Cylindrical shape, with a slight
concave effect (appears to be
slightly narrower at the mid point
than at the top and bottom of the
cylindrical portion; illustration
unclear), square shoulders, tall,
long neck, rim.
06686S
Vaso Esagono
LT 9 CTS MB
Hexagonal shape, square shoulders,
very short neck, large opening,
fitted with faucet near the base,
rim, photographed with cork top,
green tint.
The entries were liquidated on July 7 and 18, 1997. On
October 2, 1997, counsel for the importer filed this protest.
Citing Harmonized Commodity Description And Coding System
Explanatory Note (EN) 70.10 and Treasury Decision (T.D.) 96-7,
the protestant contends that the glassware is properly classified
in subheading 7010.91, HTSUS, as bottles, and other containers of
glass of a kind used for the conveyance or packing of goods. The
protestant states that "[t]he glassware is of a type that would
typically be discarded after its initial use, which is the
expectation of [the protestant] and the third parties who fill
the glassware with beverages, oils or foodstuffs for sale to
consumers."
The HTSUS headings 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)"), 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)"),
7010.93.50 ("... [o]ther, of a capacity: ... [e]xceeding 0.15
liter but not exceeding 0.33 liter: ... [o]ther containers (with
or without their closures)"), or 7010.94.50 ("... [o]ther, of a
capacity: ... [n]ot exceeding 0.15 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 1997 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 27.8% ad valorem. The 1997 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:
Whether the glassware is classifiable as containers of a
kind used for the conveyance or packing of goods under heading
7010, HTSUS, or glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar purposes under
heading 7013, HTSUS.
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)).
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. 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 in heading 7010, HTSUS, for containers "of a
kind used" for the conveyance or packing of goods and the
provision in heading 7013, HTSUS, for glassware "of a kind used"
for table or kitchen purposes are "principal use" provisions
(Group Italglass U.S.A., Inc. v. United States, 17 CIT 226
(1993)). 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)).
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. Heileman
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, HTSUS, 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.
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, HTSUS, or the class "glassware of a
kind used for table or kitchen purposes; glass storage articles"
in heading 7013, HTSUS.
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,
HTSUS, are:
1. [The container] generally [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. [T]he ultimate purchaser's primary expectation is to
discard/recycle the container after the conveyed or packed
goods are used;
3. [The container is] sold from the importer to a
wholesaler/distributor who then packs the container with
goods;
4. [The container is] sold in an environment of sale that
features the goods packed in the container and not the jar
itself;
5. [The container is] used to commercially convey
foodstuffs, beverages, oils, meat extracts, etc.;
6. [The container is] capable of being used in the hot
packing process; and
7. [The container is] recognized 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. Except for item 06686S
(addressed separately below), each article has a relatively small
opening and is not configured to "hold" a lid or cap, other than
having a rim with which a cork or similar closure may be used (in
the cases of items 01017S and 05718P, the rims are wide). Except
for item 06202P, each item has a long or moderately long neck.
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 closure, and such
closures allow for repetitive, extremely easy, opening and
closing, a feature indicating reusability. This is also
evidenced by the decorative, long or moderately long necks of
most of the items, the wide rims of two items, and the special
shape of items 01017S, 05153P, 05718P, 06139P, and 06202P (the
other two items may also have relatively unusual shapes; the
illustrations are not clear enough to determine whether this is
so).
The protestant states that the containers are sold from the
importer to a customer who fills them, but there is no evidence
as to whether this is so for the class or kind involved (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
containers are emphasized over the goods packed in them, but the
physical form of the articles (special or relatively unusual
shape, configuration for a cork or similar closure allowing for
repetitive, easy opening and closing) 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, HTSUS, is precluded.
In the case of item 06686S, in addition to the foregoing,
although the top opening is large (with a rim for a cork
closure), the faucet at the base of the article indicates that an
ultimate purchaser's primary expectation would be to use the
article for storage instead of discarding or recycling it.
Similarly, the special shape (hexagonal) and the convenience of a
cork top closure and faucet indicates that the container is
emphasized over the articles packed in it, if any. On the basis
of these criteria, we conclude that item 06686S is also not
principally used for the conveyance or packing of goods and
classification under heading 7010, HTSUS, is precluded.
All of the foregoing articles are classified under heading
7013, HTSUS. 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, HTSUS, support
principal use as household storage articles (see above, e.g.,
closures allow for repetitive, extremely easy, opening and
closing (in the case of item 06686S, the faucet indicates the
same); 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). Accordingly, items
01017S, 05153P, 05325P, 05718P, 06139P, 06202P, 06508P, and
06686S 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 or 7013.39.60, HTSUS,
depending on value.
HOLDING:
The glassware (items 01017S, 05153P, 05325P, 05718P, 06139P,
06202P, 06508P, and 06686S) is classifiable as glassware of a
kind used for table (other than drinking glasses) or kitchen
purposes, in subheading 7013.39.20 or 7013.39.60, HTSUS,
depending on value.
The protest is DENIED. 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