CLA-2 RR:CR:GC 961395 PH
Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, MD 21202
RE: Protest 1303-98-100006; 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; HQ 959638
Dear Port Director:
This is in response to protest 1303-98-100006, which
pertains to the tariff classification of certain articles of
glass under the Harmonized Tariff Schedule of the United States
(HTSUS). A sample was submitted for our examination.
FACTS:
The merchandise consists of a cylindrically shaped jar of
heavy glass, with an enlarged base, a large rim and no neck. The
article is approximately 14" high and the diameter of the body is
2 7/8" and that of the base is 4 1/4". The size of the article
is stated to be 1,062 ml. The article is fitted with a specially
shaped cork closure (broad flat top surface 3" in diameter, with
a narrower closure portion 2 1/4" in diameter). The glass has
seams, and on the base, in raised letters, is the inscription
"[name] House of Nuts".
The merchandise was entered on August 29, 1996, and after
proper extension of liquidation and notice thereof, the entry was
liquidated on November 7, 1997. On February 2, 1998, counsel for
the importer filed this protest.
Citing Group Italglass U.S.A., Inc. v. United States, 17 CIT
226 (1993), Kraft, Inc, v. United States, 16 CIT 483 (1992),
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 heading
7010, HTSUS, as containers of glass of a kind used for the
conveyance or packing of goods. Specifically, the protestant
argues that "EN 70.10 makes it clear that the heading covers
containers of all shapes and sizes which are used as containers
for foods, including those designed for use with ordinary
closures or stoppers of cork." On the basis of Kraft, supra, the
protestant argues:
As the Kraft case demonstrates, an unusual or uniquely
shaped container such as [that under consideration]
functions to attract the attention of consumers to the
products packed inside, and to compel a purchaser to select
one product over another. The use of a container more
attractive to a consumer does not preclude the glassware
from being a part of a class of containers used for the
conveyance or packing of goods classifiable under heading
7010.
In regard to the criterion on the use of a "hot packing"
process in T.D. 96-7, the protestant states that popcorn is a
foodstuff product that does not require such a process to remain
fresh for consumers. In regard to the other criteria in T.D. 96-7, the protestant states that the articles are imported from the
manufacturer by the importer and sold to a food packer who fills
them with popcorn, they are never sold empty directly to the
consumer, they are displayed and sold in an environment that
features the food in the container and not the container, they
are used commercially to convey (sell) food, they are designed to
attract the consumer's attention to the product in an attempt to
increase sales, and they are not intended to be reused.
The HTSUS headings under consideration, are as follows:
7010.91.50: [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 1 liter: ... [o]ther containers (with
or without their closures).
Goods classifiable under subheading 7010.91.50 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 this provision is 28.5% ad valorem.
ISSUE:
Whether the glassware is classifiable as a container of a
kind used for the conveyance or packing of goods under subheading
7010.91.50, HTSUS, or glassware of a kind used for table,
kitchen, toilet, office, indoor decoration or similar purposes
under heading 7013.39.20, 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. The article appears to be manufactured by
automatic machine from ordinary glass. The article has a
relatively large opening, is not configured to "hold" a lid or
cap, other than having a rim with which a cork or similar closure
may be used, and has no neck.
An ultimate purchaser's primary expectation would not be to
discard or recycle the article after the conveyed or packed
goods, if any, are used, as evidenced by the fact that the
article 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, relatively unusual shape of the
article, fitting it for use in the kitchen for decorative storage
of various kinds of dry goods (e.g., spaghetti and other pastas,
various kinds of beans).
The protestant states that the article is sold from the
importer to a food packer who fills it, 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
container is emphasized over the goods packed in it, but the
physical form of the article (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 container is capable of being used in the
hot packing process. The physical form of the article (see
above) indicates that rather than using the container to pack and
convey goods to a consumer who discards it after its initial use,
the container, and not its contents, is emphasized to customers.
On the basis of these criteria, we conclude that this article is
not principally used for the conveyance or packing of goods.
Classification under heading 7010, HTSUS, is precluded.
Insofar as the protestant's arguments on the basis of EN
70.10 and Kraft, supra, are concerned, we concur that, as the EN
states, heading 7010, HTSUS may include the containers enumerated
therein "of all shapes and sizes" and that such containers
"generally have ... a lip or flange to hold the lid or cap
[although] [s]ome ... may be closed by corks or screw stoppers."
However, as stated above and as the EN makes clear, the critical
property for containers covered by heading 7010 is that they must
be "of the [kind] commonly used commercially for the conveyance
or packing of liquids or of solid products." The determination
of whether a container is of the kind so used is made on the
basis of the analysis of the criteria for principal use (see
above). In regard to the "bear jars" in Kraft, there are many
distinctions between those jars and the containers in this
protest. Those distinctions include at least the following:
"Bear jars" not used to pack food products were destroyed
(16 CIT at 487); there is no evidence that this is so for
the articles under protest.
The "bear jars" have the parts which "[g]lass containers
used to pack, transport or market food products have ...
[including] a sealing surface, glass lugs used to attach the
closure, the finish (which refers to the sealing surface and
the glass lugs), the body (which includes the shoulder, the
sidewall and the heel), the mold seam, and the bearing
surface which supports the jar on the shelf [which parts]
are essential" (16 CIT at 487). That is, despite their
somewhat unusual shape, the Court found that "[t]he bear
jars, at least because of the lug finish, the mold seam, and
the utilities lid necessitated by the lug finish, are not
particularly handsome" and "are clearly not decorative" (16
CIT at 488). The only parts of the above-enumerated
"essential" parts which the articles under protest have are
the mold seam and the bearing surface; further, the special
shape of the article and the cork closure presented with the
sample are decorative.
The "bear jars" were packed using the "hot pack process" (16
CIT at 487); "[t]he physical characteristics of the usual
and ordinary glass containers used to pack and market food
products [include the requirement that] such glass
containers must be designed for use in the hot pack process"
(16 CIT at 489); there is no evidence that this is so for
the articles under protest.
Plaintiff provided evidence that the "bear jars" were used
in a promotional program to market strawberry jam and grape
jelly and, in such programs "[t]he container provides the
physical means of delivering the food product to the
consumer and establishes the image of the product in the
consumer's mind[;] [t]he design of the package also attracts
the consumer's attention to the food product in the store"
(16 CIT at 487-488). The example used by the Court in this
regard (Mrs. Butterworth's pancake syrup containers) (16 CIT
at 488), makes clear that one of the reasons that the
somewhat unusually shaped "bear jars" were found to be
containers for the packing, transporting, or marketing of
merchandise was the promotional program emphasizing the
shape of the "bear jars" with a particular producer's
footstuff. There is no evidence of such a promotional
program for the articles under protest.
The article is 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 a
household storage article (see above, e.g., the closure allows
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)). Accordingly, the article is
principally used to store food material and is 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. This is consistent with
Headquarters Ruling (HQ) 959638 dated October 10, 1997.
HOLDING:
The glassware is 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. 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