CLA-2 RR:CR:GC 966957 AML
TARIFF No.: 7010.90.5000
Port Director
U.S. Customs and Border Protection
Port of Cleveland
6747 Engle Road
Middleburg Heights, OH 44130
RE: Protest 4101-03-100293; glass articles; “Smelly Jelly” jars
Dear Port Director:
This is in response to protest 4101-03-100293, filed by counsel on behalf of Cleveland Imports, Inc., which pertains to the tariff classification of certain articles of glass marketed as “Smelly Jelly” jars under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Samples, pictorial representations and catalogue descriptions of the goods were submitted for our examination.
FACTS:
The articles at issue are “Smelly Jelly” jars, hexagonally shaped jars measuring approximately 2-3/4” by 3-3/4” in height with a capacity of approximately 9 ounces. The necks of the jars are threaded and they are imported with a perforated, twist-off metal lid. Counsel for the protestant states that the articles will be used to convey and pack fragrant gels and marketed to consumers.
The entry was made on April 8, 2003, and the entry was liquidated (following a change from the entered classification under heading 7010, HTSUSA to heading 7013, HTSUSA and rate advance via Customs Form (“CF”) 29, dated May 21, 2003) on June 6, 2003. The merchandise was classified under subheading 7013.99, HTSUSA, as decorative glassware, depending at the eight-digit level upon value. On September 4, 2003, counsel for the protestant filed this protest, arguing that the merchandise is of a kind used for the conveyance or packing of goods and should be classified in heading 7010, HTSUSA.
ISSUE:
Whether the glassware is classifiable as preserving jars of glass or containers of a kind used for the conveyance or packing of goods under heading 7010, HTSUSA, or glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under heading 7013, HTSUSA?
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 HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1, HTSUSA, 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 and Border Protection (“CBP”) 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 HTSUSA provisions 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:
Other, of a capacity:
7010.90 Exceeding 0.33 liter but not exceeding
1 liter:
7010.90.20 Produced by automatic machine.
7010.90.50 Other containers (with or without their closures).
* * *
7013 Glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018):
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over $3 each.
* * *
An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also United States v. Citroen, 223 U.S. 407 (1911). The articles at issue are empty glass jars with threaded necks and perforated, twist-off lids. While the use of the articles is considered in the analysis (see below), the sizes, characteristics and appearance of the articles are also considered in determining their classification.
The provision for preserving jars of glass in heading 7010 is an eo nomine provision (Myers v. United States, 969 F. Supp. 66, 71-73 (CIT 1997)). 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.C., Inc. v. United States, 17 CIT 226 (1993)). Neither the protestant nor CBP contends that the articles are preserving jars. Thus, we consider whether the merchandise is properly classifiable under heading 7010 as “of a kind used” for the conveyance and packing of goods because after such a determination it cannot be classified under heading 7013, because of the specific parenthetical provision to that effect in heading 7013 (Myers, 969 F. Supp. at 75).
EN 70.10 states, in pertinent part that "[t]his 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 size of the openings and necks are configured to "hold" a lid or cap with a traditional threaded closure. There is no evidence as to whether the ultimate purchaser’s primary expectation would be to discard or recycle the articles after the goods conveyed or packed in them are depleted, but the relatively ordinary appearance (but for the perforated metal, twist-off lid, the article resembles jars for jelly and jam of several major companies) and nature of the articles supports such a conclusion. There is no evidence whether the environment of sale of the articles features the goods packed in the articles and not the articles themselves, or whether the articles are recognized in the trade as used primarily to pack and convey goods to a consumer who then discards or recycles the articles after this initial use, but the physical form (see above) indicates that this is so. The articles’ function is to contain scented gel as the gel dissipates. While such function is arguendo aesthetic or decorative, the jar and perforated lid facilitate this effect simply by holding the contents. Thus, we conclude that the “Smelly Jelly” jars are properly classified in heading 7010, HTSUSA, and therefore may not be classified in heading 7013, HTSUSA. They are classifiable as containers of glass of a kind used for the conveyance or packing of goods in subheading 7010.90.50, HTSUSA. This is consistent with HQ 959639 dated October 21, 1997.
HOLDING:
The “Smelly Jelly” jars are classified as containers of glass of a kind used for the conveyance or packing of goods, other containers (with or without their closures), under subheading 7010.90.5000, HTSUSA. The column 1 general rate of duty is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
The protest should be GRANTED.
In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty (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 (60) days from the date of the decision the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial Rulings Division