CLA-2 CO:R:C:M: 956218 MMC
District Director
U.S. Customs Service
10 Causeway Street
Boston, MA 02222-1059
RE: Protest 0401-93-100671; Containers, Tins, Metal Biscuit/food
Canisters; 7310.29.00; NYRLs 894758, 880066; PC 865788; EN 73.10,
73.23
Dear District Director:
The following is our response to the request for further
review of Protest 0401-93-100671 concerning your action in
classifying and assessing duty on various metal biscuit/food
canisters under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The subject articles are highly decorated painted metal
canisters. Pictures submitted indicate that these articles are
made in a variety of shapes and sizes. Invoice and packing lists
identify the various canisters by describing their painted designs.
These designs vary, but appear to have a circa 1930's theme.
Various slogans for products of the 1930's are printed on some of
the canisters. Others have an English or Italian country village
motif. Protestant indicates that they are imported empty.
Protestant did not indicate the articles' constituent metal.
The subject articles were entered under subheading 7310.29.00,
HTSUS, as tanks, casks, drums, cans, boxes and similar containers
of iron or steel. However, the entry was liquidated on January 3,
1994, under subheading 7323.99.90, HTSUS, as table, kitchen and
other household articles, of iron or steel. The protest was timely
filed on January 12, 1994.
The headings under consideration are as follows:
7310 Tanks, casks, drums, cans, boxes and similar containers,
for any material (other than compressed or liquefied
gas), of iron or steel, of a capacity not exceeding 300
liters, whether or not lined or heat insulated, but not
fitted with mechanical or thermal equipment
7323 Table, kitchen or other household articles and parts
thereof, of iron or steel; iron or steel wool; pot
scourers and scouring or polishing pads, gloves and the
like or iron or steel
According to protestant, another importer of the subject
articles obtained a pre-entry classification determination (PC)
which classifies the subject articles under heading 7310, HTSUS.
See, PC 865788 dated August 14, 1991.
ISSUE:
Whether the painted canisters are classifiable as other
containers of iron or steel or as table, kitchen or other household
articles of iron or steel.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance
with the General Rules of Interpretation (GRI's). GRI 1, HTSUS,
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.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes (ENs) may
be consulted. The ENs, although not dispositive nor legally
binding, provide a commentary on the scope of each heading of the
HTSUS and are generally indicative of the proper interpretation of
these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August
23, 1989). EN 73.10, pg. 1022, states, in pertinent part, that:
...this heading covers sheet or plate iron or steel containers
of a capacity not exceeding 300 l, but of a size easily moved
or handled, commonly used for the commercial conveyance and
packing of goods, and such containers installed as fixtures.
...the smaller containers [covered by this heading] include
boxes, cans, tins, etc., mainly used as sales packing for
butter, milk, beer, preserves, fruit or fruit juices,
biscuits, tea, confectionery, tobacco, cigarettes, shoe cream,
medicaments, etc.
...This heading also excludes:
...(b) Biscuit barrels, tea caddies, sugar tins and
similar household or kitchen containers and canisters
(heading 73.23)
EN 73.23, pgs. 1035-1036, states, in pertinent part, that:
(A) TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND PARTS
THEREOF
This group comprises a wide range of iron or steel articles,
not more specifically covered by other headings of the
Nomenclature, used for table, kitchen or other household
purposes;...
...These articles may be cast, or of iron or steel sheet,
plate, hoop, strip, wire, wire grill, wire cloth, etc., and
may be manufactured by any process (moulding, forging,
punching, stamping, etc.). They may be fitted with lids,
handles or other parts or accessories of other materials...
...The group includes:
(1) Articles for kitchen use such as saucepans, steamers,
pressure cookers, preserving pans, stew pans, casseroles, fish
kettles; basins; frying pans, roasting or baking dishes and
plates; gridirons, ovens not designed to incorporate heating
elements; kettles; colanders; frying baskets; jelly or pastry
moulds; water jugs; domestic milk cans; kitchen storage tins
and canisters (bread bins, tea caddies, sugar tins, etc.);
salad washers; kitchen type capacity measures; plate racks,
funnels.
Based on the evidence presented, it is our opinion that the
subject canisters are of a type described by EN 73.23. The
articles are imported empty. They are highly decorated and appear
to be hand painted. Customs believes that this practice is usually
more expensive and durable than machine painting and tends to
emphasize the articles' decorative nature. Finally, while some
submitted pictures show containers holding cookies, candies,
coffee, sewing accessories and pasta, nothing in protestant's
submission demonstrates that the canisters are mainly used for the
commercial conveyance or packing materials of goods. Therefore,
the articles are classifiable under subheading 7323.99.90, HTSUS,
as other table, kitchen and other household articles, of iron or
steel. Because protestant did not provide the articles'
constituent metal, classification under subheading 7323.99.50,
HTSUS, as table, kitchen and other household articles of tinplate
is precluded.
This conclusion is consistent with two other Customs rulings.
New York Ruling Letter (NYRL) 880066, dated November 17, 1992, held
that a small can made of tinplate with a painted lily and removable
top was classifiable under subheading 7323.99.50, HTSUS.
Similarly, NYRL 894758, dated February 24, 1994, determined that a
set of three tinplate cylindrical canisters with removable lids was
classifiable under the same subheading.
Protestant cites PC 865788 as precedent for classifying the
subject articles as containers. We disagree. The pre-entry
classification determination merely states "Tins (empty)" and
provides a subheading with duty rate, without providing a
description of the article classified. Because pre-classification
determinations rarely provide complete article descriptions and are
not published or made generally available to the public, Customs
maintains that they are only binding for their recipient importer.
They cannot be relied upon by another party and have no
precedential value other than for the recipient.
HOLDING:
The subject canisters are classifiable under subheading
7323.99.90, HTSUS, which provides for other table, kitchen and
household articles of iron or steel.
The protest should be denied. In accordance with Section 3A
(11)(b) of Customs Directive 0993550-065, dated August 4, 1993,
Subject: Revised Protest Directive, this decision, together with
the Customs Form 19, should be mailed 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 Ruling 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