CLA-2 RR:CR:GC 959638 PH
Port Director
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202
RE: Protest 1303-96-100144; glass containers; triangle jar with
cork lid; conveyance or packing of goods; preserving jars of
glass; glassware for table or kitchen decoration; household glass
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); 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 087779; 953952
Dear Port Director:
This is in response to Protest 1303-96-100144, which
pertains to the tariff classification of certain triangle jars of
glass with cork lids under the Harmonized Tariff Schedule of the
United States (HTSUS). A sample was submitted for our review.
FACTS:
The merchandise under protest consists of a 3-sided glass
jar (so that the bottom of the jar forms a triangle), invoiced as
"10 [INCH] TRIANGLE JARS WITH CORK" (although not described by
the protestant, one of the protested entries is for "23 [INCH] 12
SIDED JAR GREEN/BLUE WITH CORKS"). The sides of the 10 inch
triangle jars are approximately 8 « by 3 « inches. The jar has a
round opening (approximately 1 3/4 inches in diameter) with a
slightly raised rim. The lid is of cork. The glass is quite
heavy and has a turquoise tint. According to the invoices in the
file, the jars are imported empty with the corks. No evidence is
provided as to the use of these particular jars, although the
importer is "[...] House of Nuts". Value, according to the
invoices, was $.61 for all but two of the entries. In the case
of the other entry of jars meeting the above description, the
invoiced value was $.72. In the case of the jar invoiced as a 23
inch jar with 12 sides, the invoiced value was $4.85.
Seven entries of merchandise are included in the protest.
The dates of entry are between September 8 and October 12, 1995.
According to the entry summaries, the importer classified the
merchandise under subheading 7010.90.50, HTSUS. The entries were
liquidated on February 16, 1996, with classification under
subheading 7013.39.20, HTSUS (except for the entry with 23 inch
12-sided jars, in which case classification was under subheading
7013.39.50, HTSUS).
On March 20, 1996, the importer filed the protest contending
that glassware of the type in the protested entries has "...
traditionally been entered and liquidated under [subheading]
7010.90.5050, [HTSUS,] free of duty." The protestant cites
Treasury Decision (T.D.) 96-7, which it states "... [made] the
imported goods subject to duty under [subheadings] 7013.39.2000
and 7013.39.5000 ..." The protestant argues that since T.D. 96-7
was effective regarding merchandise entered for consumption or
withdrawn from a warehouse for consumption on or after February
2, 1996, and since the protested entries were entered for
consumption prior to this date, the entries should be
reliquidated, with classification as entered.
The competing subheadings, as of the time under
consideration, are as follows:
7010.90.50: [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: ... [o]ther containers (with or
without their closures.
Goods classifiable under subheading 7010.90.50 receive duty-free
treatment.
7013.39 [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.
The 1995 general column one rate of duty for goods classifiable
under subheading 7013.39.20 (... [v]alued not over $3 each) is
29.2% ad valorem. The 1995 general column one rate of duty for
goods classifiable under subheading 7013.39.50 (... [o]ther:
[v]alued over $3 but not over $5) is 15% ad valorem.
ISSUE:
Are the 10 inch triangle jars and 23 inch 12-sided jars,
each with cork lids, 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 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 that 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).
Protestant's contention that this merchandise would have
been classified under subheading 7010.90.50, HTSUS, before T.D.
96-7 is concerned is incorrect. See, e.g., HRL 087779, dated
December 27, 1990, which classified a variety of glass jars,
including a triangle shaped glass storage jar with a metal cover
and handle that was 12 3/4 inches tall and a round glass storage
jar with a cork stopper style cover that was 12 inches tall under
subheading 7013.39.20, HTSUS (see also, HRL 953952, dated
September 22, 1994, and the rulings cited therein). The jars in
HRL 087779 are similar to the merchandise in this case in all
material respects.
Under "EFFECTIVE DATE" in T.D. 96-7, it is stated that
"[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"). As shown above, the
tariff classification of the protested merchandise was in
accordance with Customs rulings prior to T.D. 96-7 and the T.D.
did not result in any changes in tariff classification for the
merchandise.
In this case, the competing headings are 7010 and 7013,
HTSUS. Heading 7010, HTSUS, provides for glass containers of a
kind used for the conveyance or packing of goods, preserving jars
of glass, and certain closures. Heading 7013, HTSUS, provides
for glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes, not including glassware
covered in heading 7010.
The provision for preserving jars of glass in heading 7010,
HTSUS, is an eo nomine provision (Myers v. United States, CIT
Slip Op. 97-75, decided June 17, 1997). The provision in heading
7010, HTSUS, "of a kind used" for the conveyance or packing of
goods is a "principal use" provision (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 certain 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, HTSUS. 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, although the walls of the jars are composed of
thick glass, the jar has no ability to form and maintain a
hermetic seal, nor is there any indication that the jar has
potential for reuse as a canning or preserving jar. The jars 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.
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, the 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),
HTSUS, 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.
The classification of the jars considered in HRL 087779
(referred to above) was on the above basis. The ruling states:
"The jars at issue are not used commercially. ... They are
household jars that are used as canisters in the kitchen to
hold various types of food. ...
Similarly, the jars in this case are of a kind used (i.e.,
principally used) for table or kitchen purposes, i.e., household
storage articles, and not as "... containers of the kind commonly
used commercially for the conveyance or packing of liquids or of
solid products" (EN 70.10). The jars are classifiable as
glassware of a kind used for table (other than drinking glasses)
or kitchen purposes other than that of glass-ceramics, other,
other, valued not over $3 each, in subheading 7013.39.20, HTSUS
(the 23 inch jar with 12 sides, with an invoice value greater
than $3 but not over $5, is classifiable in subheading
7013.39.50, HTSUS).
HOLDING:
The pieces of glassware described in the FACTS (10 inch
triangle jars and 23 inch 12-sided jars, each with cork lids) are
classifiable as glassware of a kind used for table (other than
drinking glasses) or kitchen purposes, in subheading 7013.39.20
or 7013.39.50, 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