CLA-2 RR:CR:GC 963258 PH
Barbara Dawley, Esq.
Meeks & Sheppard
1735 Post Road, Suite 4
Fairfield, CT 06430
RE: Glass bottles or similar containers
Dear Ms. Dawley:
This is in reference to your request to the Director, Customs National Commodity Specialist Division, New York, NY, dated October 7, 1999, on behalf of Independent Can Company, Western Specialty Container Division, for a ruling as to the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of two glass bottles. Samples were provided. Your letter was referred to this office for reply.
FACTS:
The merchandise under consideration consists of 500 and 100 millimeter (ml) glass bottles or containers. The containers will be imported empty without stoppers. They appear to be made of very inexpensive glass (you state that they are mass-produced from ordinary clear colorless glass on automatic molding machines). The bases are knurled around the edge and have the sizes and other markings molded in the glass. There is a seam mark vertically through the middle of the containers. The smaller container is approximately 5” high, has a diameter at the base of 2”, and a neck with a diameter of 1” approximately 2” long. The larger container is approximately 7 ¾” high, has a diameter at the base of 3 ½”, and a neck with a diameter of 1” approximately 2 ½” long. Each container has a small lip around the opening, which appears to be of the size to be closed with a standard-sized cork.
You state that after importation, the importer will resell the containers exclusively to a gourmet sauce producer. The sauce producer will fill the containers with various sauces, place a label around the neck and another around the body of the container, and seal them with cork stoppers ready for retail sale. Promotional literature and/or labels to be used with the articles, as well as a photograph of the containers packed with the various sauces with labels attached, are included. There is no emphasis given in these materials to the containers; the emphasis is on the contents of the containers.
ISSUE:
Whether the 500 ml and 100 ml glass containers are classifiable as containers of a kind sued for the conveyance or packing of goods in heading 7010, HTSUS, or glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes in heading 7013, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6, taken in order.
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 HTSUS subheadings under consideration are as follows:
7010 Carboys, 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
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)
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.A., 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 v. United States, 969 F. Supp. 66, 75).
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.
Principal use is the largest use in the United States at the time of importation of articles of the same class or kind as the imported article. 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).
Generally, class or kind is determined based on the form of the article in question. If the form is indeterminate, the following criteria may be considered: 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).)
Glass articles such as those under consideration, imported empty (for the tariff treatment of such articles imported containing foodstuffs, see Headquarters Ruling (HQ) 962709 dated December 6, 1999), are classifiable in heading 7010, HTSUS, if their form indicates that they are principally used to pack or convey merchandise sold commercially. If their form indicates that they are principally used to store food in the home or for similar purposes, they are classifiable in subheading 7013.39, HTSUS. Even if the particular articles are actually used as containers for the conveyance or packing of goods, they are not classifiable in heading 7010 unless this use represents the principal use (see above) for articles of the same class or kind. Similarly, even if the imported empty bottles are of the kind commonly so used, they are not classifiable in heading 7010 unless this use represents the principal use for articles of the same class or kind.
We conclude that the form of the articles under consideration indicates that they are principally used to pack or convey merchandise sold commercially. That is, the shape of the bottles is similar to that of containers so used and the glass is ordinary and inexpensive (note the seams on the sides) without any special features. The ordinary, inexpensive nature of the articles is also indicated by the knurls around the edges of the bases of the articles, and the size and letters embossed on the bases. Although we are satisfied that the form or shape of the articles is decisive in this case, we note that the so-called Carborundum factors also support this determination. That is, the ordinary, inexpensive nature of the articles as well as the labels and literature indicate that the ultimate purchaser’s primary expectation would be to discard or recycle the container after the conveyed or packed goods are used. The channels of trade for such containers, as well as these particular containers, are that the container is sold from the importer to a producer who packs the containers with foodstuffs. The environment of sale, as indicated by the labels and literature, supports the conclusion that it is the contents, and not the containers that are emphasized. Economic realities (the relatively inexpensive nature of the containers, versus that of the contents, in the somewhat “high-end” gourmet food industry, also suggest the conclusion that the principal use of articles of the class or kind of the containers is as glass containers for the commercial conveyance or packing of goods.
Accordingly, although most glass bottles with cork closures are classifiable in heading 7013, HTSUS, we conclude, on the basis of the above analysis, that these articles are classifiable in heading 7010, HTSUS, as bottles of glass of a kind used for the commercial conveyance or packing of goods. The 500 ml article is classifiable in subheading 7010.92.50, HTSUS, as an other bottle of glass of a kind used for the conveyance or packing of goods, of a capacity exceeding 0.33 liter but not exceeding 1 liter. The 100 ml article is classifiable in subheading 7010.94.50, HTSUS, as an other bottle of glass of a kind used for the conveyance or packing of goods, of a capacity not exceeding 0.15 liter. This is consistent with HQ 955980 dated July 26, 1994; HQ 959941 dated October 27, 1997; and HQ 954671 dated February 24, 1999.
HOLDING:
The 500 ml and 100 ml glass containers are classifiable, respectively, in subheading 7010.92.50, HTSUS, or subheading 7010.94.50, HTSUS, as bottles of glass of a kind used for the conveyance or packing of goods, other, of a capacity exceeding 0.33 liter but not exceeding 1 liter, or of a capacity not exceeding 0.15 liter.
Sincerely,
John Durant, Director,
Commercial Rulings Division