CLA-2 RR:CR:GC 961409 PH
Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105
RE: Protest 2809-97-101371; glassware; conveyance or packing of
goods; glassware for table, kitchen, toilet, office, indoor
decoration; household storage articles; principal use; 7010;
7013; 7020; 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; HQs 959639; 959941; 961395
Dear Port Director:
This is in response to protest 2809-97-101371, 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
examination.
FACTS:
One entry, dated February 14, 1997, is included in the
protest, which is against the classification of three styles of
glassware, # 03763, 05379, and 06065, described in the following
table.
Code/Ref.
Denomination
Description
03763
Bott. Duca
500 F
Four sides, tall, long neck, rim.
Protestant states that the article is
used to pack olive oil.
06065
Bott. Tromba
750 BP MB
Conical shape in the form of a
trumpet or horn, with a handle and
"mock finger tabs", rim. Protestant
states that the article is purchased
by a bottler of brandy.
05379
Bott. MG
Bord
Francese Lt
6 S
Cylindrical shape (typical wine-bottle shape), moderate length neck,
rim, has a "punt" (or "push-up
bottom"), as in a typical wine
bottle. Protestant states that the
article is filled with wine.
The entry was liquidated on September 19, 1997. Item #
03763 and 06065 were classified in subheading 7013.39.20, HTSUS,
and item # 05379 was classified in subheading 7020.00.60, HTSUS.
On December 18, 1997, 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 bottle 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 there are many
types of foods and beverages that do not require the type of
hermetic seal created by the hot packing process, such as wine,
vinegars, and olive oil infusion-type products, as well as dry
goods and non-food items. 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 wineries or
food processors which fill them with wine or food products, they
are never sold empty directly to the consumer, they are
ultimately displayed and sold in an environment that features the
wine or food in the container and not the container, they are
used commercially to convey beverages or food, they are
recognized in the trade as used primarily to pack and convey wine
to a consumer and, in particular regard to item # 06065, are
designed to attract the consumer's attention to the product in an
attempt to increase sales, and they are only reusable in the same
manner as any other glass container in which food products are
packed and marketed.
The HTSUS headings 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.
Goods classifiable under subheading 7010.91.50 ("... [o]ther, of
a capacity: [e]xceeding 1 liter: ... [o]ther containers (with or
without their closures)"), or 7010.92.50 ("... [o]ther, of a
capacity: ... [e]xceeding 0.33 liter but not exceeding 1 liter:
... [o]ther containers (with or without their closures)") receive
duty-free treatment.
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 1997 general column one rate of duty for goods classifiable
under subheading 7013.39.20 ("... [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") is 27.8% ad valorem. The 1997 general column one
rate of duty for goods classifiable under subheading 7013.39.60
("... [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 over $3 each: ... [o]ther: ...
[v]alued over $5 each") is 7.2% ad valorem.
7020: Other articles of glass
The 1997 general column one rate of duty for goods classifiable
under subheading 7020.00.60 ("... [o]ther") is 5.6% ad valorem.
ISSUE:
Whether the glassware is classifiable as containers of a
kind used for the conveyance or packing of goods under heading
7010, HTSUS, glassware of a kind used for table, kitchen, toilet,
office, indoor decoration or similar purposes under heading 7013,
HTSUS, or other articles of glass under heading 7020, 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).
Subheading 7020.00.60, HTSUS, is a so-called "basket"
provision, in which classification "is appropriate only when
there is no tariff category that covers the merchandise more
specifically" (Apex Universal, Inc., v. United States, CIT Slip
Op. 98-69 (May 21, 1988)). Therefore, we are first addressing
the other competing provisions. Only if classification in these
provisions is precluded will we address classification in
subheading 7020.00.00, HTSUS.
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. Each of the articles appears to have been
manufactured by automatic machines from ordinary glass. Each
article has a relatively small opening and is not configured to
"hold" a lid or cap, other than having a rim with which a cork or
similar closure may be used. Each item has a long or moderately
long neck (item # 06065, because of its unique shape, does not
have a neck as such, but the portion of the article leading to
the opening is similar to a relatively long neck).
In the case of item # 05379, the article is similar in shape
to an ordinary wine bottle and has a "punt" (or "push-up" bottom)
as is typical of such containers. The protestant states that the
container is sold from the importer to a winery which fills it,
as its physical shape indicates, with wine. There is no evidence
as to whether the container is emphasized over the goods packed
in it, but the physical form of the article (see above) indicates
that this is not 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 it is used to pack and
convey goods to a consumer who discards it after its initial use.
On the basis of these criteria (in particular, the physical shape
of the article, including the "punt"), we conclude that item #
05379 is of the class or kind of goods principally used for the
conveyance or packing of goods. The article is properly
classified under heading 7010, HTSUS, and, therefore, may not be
classified under heading 7013, HTSUS, as specifically provided in
heading 7013. Item # 05379 is classifiable as a container of
glass of a kind used for the conveyance or packing of goods in
subheading 7010.91.50, HTSUS.
This classification of item # 05379 is consistent with
Headquarters Ruling (HQ) 959941 dated October 27, 1997 (see item
# B4300 in that ruling). We note that HQ 959639 dated October
21, 1997, held certain large containers (2 to 6 liters), one of
which had a style number and denomination similar to item #
05379, to be classifiable under heading 7013, HTSUS. However,
there is no evidence in HQ 959639, or the file therefore, that
the containers involved therein had the shape of an ordinary wine
bottle and, in particular, there is no evidence that those
containers had a "punt". This ruling is distinguished from HQ
959639 on that basis.
Insofar as item # 03763 and 06065 are concerned, 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 decorative shape of each item
(trumpet or horn shape for item # 06065; geometric shape and long
neck for item # 03763). This is also evidence by the fact that
each item is configured only for a cork or similar closure, and
such closures allow for repetitive, extremely easy, opening and
closing, a feature indicating reusability.
The protestant states that the containers are sold from the
importer to a customer who fills them, but there is no evidence
as to whether this is so for the class or kind involved (we
emphasize, as stated above, 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
(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 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 containers to pack
and convey goods to a consumer who discards them after their
initial use, the containers, and not their contents, are
emphasized to customers. On the basis of these criteria, we
conclude that item # 03763 and 06065 are not principally used for
the conveyance or packing of goods. Classification under heading
7010, HTSUS, is precluded.
Item # 03763 and 06065 are 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 household storage articles (see above, e.g.,
closures allow for repetitive, extremely easy, opening and
closing; when sold filled, the decorative 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, these items 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, in subheading 7013.39.20, HTSUS.
Insofar as the protestant's arguments on the basis of EN
70.10 and Kraft, supra, are concerned, see HQ 961395 dated
October 20, 1998, addressing similar arguments made by the same
protestant in regard to another protest.
HOLDINGS:
(1) Item # 05379 is classifiable as an other bottle of glass
of a kind used for the conveyance or packing of goods of a
capacity exceeding 1 liter, in subheading 7010.91.50, HTSUS.
(2) Item # 03763 and 06065 are classifiable as other
glassware of a kind used for table (other than drinking glasses)
or kitchen purposes, in subheading 7013.39.20, HTSUS.
The protest is GRANTED IN PART (as to item # 05379) and
DENIED in part (as to item # 03763 and 06065). 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