CLA-2 RR:CR:GC 960162 PH
Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105
RE: Protest 2809-96-101705; glass containers; cruet; elongated,
long necked jar with rim; principal use; conveyance or packing of
goods; preserving jars of glass; glassware for table, kitchen,
toilet, office, indoor decoration; household glass storage
articles; 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)
Dear Port Director:
This is in response to Protest 2809-96-101705, 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
review.
FACTS:
The merchandise under protest consists of two glass articles
(other pieces of glassware were imported under the protested
entry but were liquidated with classification in subheading
7010.92.50, HTSUS, free of duty; this ruling does not address
whether the classification of those items (05434P, 00609P, and
05060P) was correct). The articles under protest are invoiced as
"BOTT. TUSCIA 375 [ml.]" (code 00635P) and "BOTT. BORDUNDO 500
[ml.]" (code 03421P). According to the illustrations of these
articles, item 00635P is a cruet-shaped article with a flat base,
handle, relatively wide opening, and lip. Item 03421P has a
cylindrical shape, is elongated (i.e., very tall relative to its
width), and has a very long neck, small opening, and rim around
the opening.
An entry of May 21, 1996, is included in the protest. The
entry was liquidated on September 13, 1996, with classification
of items 00635P and 03421P under subheading 7013.39.20, HTSUS.
On December 12, 1996, the importer protested, citing
"ATTACHED JUSTIFICATION". The file contains no such attachment,
but the Customs Protest and Summons Information Report (Customs
Form 6445) prepared by the Import Specialist states that the
importer's position is that:
No imported bottles are dutiable and all bottles are
classifiable as 7010.92.50/Free. ... Importer claims that
all bottles are imported empty and sold to customers that
fill them. ...
The competing subheadings, as of the time under
consideration, are as follows:
7010.92.50: [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
0.33 liter but not exceeding 1 liter: ...
[o]ther containers (with or without their
closures).
Goods subject to the column one rate of duty and classifiable
under subheading 7010.92.50 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 subheading 7013.39.20 is 28.5% ad valorem.
ISSUE:
Are the 375 milliliter cruet-shaped article of glass and the
500 milliliter cylindrically shaped, elongated jar classifiable
as containers of a kind used for the conveyance or packing of
goods 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).
The competing classifications are under headings 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 in heading 7010, HTSUS, 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.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 v.
United States, CIT Slip Op. 97-75, decided June 17, 1997).
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,
applies. It 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); as stated above,
the competing provisions are principal use provisions, not actual
use provisions).
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.
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." (T.D. 96-7 is effective regarding merchandise entered
for consumption or withdrawn from a warehouse for consumption on
or after February 2, 1996, as is true in this case.) The
criteria described in T.D. 96-7 in this regard are:
1. [The container] [g]enerally [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. The ultimate purchaser's primary expectation is to
discard/recycle the container after the conveyed or packed
goods are used;
3. [The container is] [s]old from the importer to a
wholesaler/distributor who then packs the container with
goods;
4. [The container is] [s]old in an environment of sale that
features the goods packed in the container and not the jar
itself;
5. [The container is] [u]sed to commercially convey
foodstuffs, beverages, oils, meat extracts, etc.;
6. [The container is] [c]apable of being used in the hot
packing process; and
7. [The container is] [r]ecognized 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. Both articles appear to be manufactured by
automatic machines from ordinary glass. Item 03421P has a
relatively small opening and a very long neck and, although it
has a rim, is not configured to "hold" a lid or cap, other than a
cork or similar closure. Item 00635P has a larger opening but,
as a cruet-like article, is not configured to "hold" a lid or
cap. 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 item
03421P is configured only for a cork or similar lid, and such
lids allow for repetitive, extremely easy, opening and closing, a
feature indicating reusability, and item 00635P is in the form of
a cruet, a storage article with a handle. The protestant states
that the containers are sold from the importer to a
wholesaler/distributor who then packs the container with goods,
but both articles are of a kind sold to the ultimate purchaser
empty (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 (elongated in the
case of item 03421P and in the shape of a cruet, used for table
or kitchen storage of food, in the case of item 00635P) 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
container to pack and convey goods to a consumer who discards the
container after its initial use, the containers, and not their
contents, are emphasized to customers. On the basis of these
criteria, we conclude that neither of these articles is
principally used for the conveyance or packing of goods.
Classification under heading 7010 is precluded.
Both articles are classified under heading 7013. Item
03421P is of a kind which has been sold empty as a household
storage articles, although it can also be used for the commercial
conveyance or packing of goods (see above). The protestant
provides no evidence regarding the principal use of this item,
but many of the criteria used in the analysis of the
applicability of heading 7010 support principal use as household
storage articles (see above, e.g., lids allow 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), and EN 70.13, which specifically enumerates as
exemplars of table or kitchen glassware under this heading,
"decanters", and "jugs").
Item 00635P is in the form of a cruet. Cruets are not
articles of a kind used to commercially convey or pack goods (see
discussion of criteria for this determination above) (see above
distinction between principal use and actual use). They are
clearly principally used to store food material (see EN 70.13,
which specifically enumerates "oil or vinegar cruets" among the
exemplars listed as being covered by heading 7013 under table or
kitchen glassware).
Accordingly, items 03421P and 00635P 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, other, other, valued not over
$3 each, in subheading 7013.39.20, HTSUS.
HOLDING:
The 375 milliliter cruet-shaped article of glass and the 500
milliliter cylindrically shaped, elongated jar are 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