• HQ H032715
• Mar 08, 2010

• Type : Classification • HTSUS : 7013.49.20
•  Related:   963258; 966957; 966105; 959639; 959941; 959942; 960162; 960163; 959637; 959751; 959638   

CLA-2 OT:RR:CTF:TCM H032715 CkG

TARIFF NO: 7013.49.20

Port Director
Port of Chicago
U.S. Customs and Border Protection
9915 Bryn MawrRosemont, Illinois 60018

Re: Application for Further Review of Protest No. 3901-08-100169; Cubi Glass Storage Jars

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3901-08-100169, filed on behalf of S&M International Trading (USA), Inc. (“Protestant”), against U.S. Customs and Border Protection’s (CBP’s) classification of glass storage jars under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The protest covers the classification of five entries, described in the entry documents as various models and sizes of “[g]lass jar for food packaging - Cubi glass storage jar.” The protestant describes the subject merchandise, of which a sample was provided, as follows:

The glass jars are imported empty with glass lids that form an air-tight seal by means of a plastic gasket. The imported jars are made of ordinary clear glass and are mass produced on automatic molding machines. As a result of the manufacturing method, the jars have visible molding seams along each side joint and bottom, as well as an embossed molding mark and circle on the bottom of the jars.

A picture of the type of jar at issue is included below:




According to the protestant, after importation the jars were sold to a distributor, who in turn sold the jars to a food manufacturer who exclusively used the subject jars to package mixed salted nuts. The packaging process involved filling the jars with nuts, adhering product labeling onto the outside panel of the jars, and inserting the glass lid closure, forming an air tight seal in order to ensure that the nuts remain fresh. The food manufacturer then sold the filled jars to a U.S. retail chain that sells merchandise in stores as well as on its Web site, and to other similar retail establishments.

The entries were made from August 23, 2007, through October 6, 2007, under heading 7010 (7010.90.50), HTSUS. CBP liquidated the five entries under heading 7013 (7013.49.20), HTSUS, between January 4, 2008, and January 18, 2008. On January 31, 2008, the protestant filed the instant protest and AFR with the Port of Chicago.

ISSUE:

Whether the described merchandise is “of a kind used for the conveyance or packing of goods”, classified in heading 7010, HTSUS, or whether it is “of a kind used for table…or kitchen purposes”, classified under heading 7013, HTSUS?

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification and on the rate and amount of duties chargeable. The protest was timely filed within 180 days of liquidation of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2007)).

The Port of Chicago properly approved the Application for Further Review of Protest No. 3901-08-100169, because the protestant has met the requirements of 19 CFR §§ 174.24(a) and 174.25. The protestant has alleged that the port’s decision is inconsistent with the decisions in Automatic Plastic Molding, Inc. v. United States, 26 Ct. Int’l Trade 1201 (Oct. 5, 2002) and Headquarters Ruling Letter (HQ) 963258, dated December 17, 1999.

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).  GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.  In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.

The 2007 HTSUS 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:

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):

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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

EN 70.10 provides, in pertinent part, as follows:

This heading covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). They include: … (B) Jars, pots and similar containers for the conveyance or packing of certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.), cosmetic or toilet preparations (face creams, hair lotions, etc.), pharmaceutical products (ointments, etc.), polishes, cleaning preparations, etc. These articles are usually made of ordinary glass (colourless or tinted) by pressure in a mould usually followed by blowing with compressed air. They generally have a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap. Some of these containers, however, may be closed by corks or screw stoppers.

Like bottles, these articles may be sand-blasted, cut, etched or engraved, decorated, banded, etc. … The heading also includes preserving jars of glass.

Closures of any material, presented with the containers for which are intended, remain classified in this heading. … The heading does not include: … (c) Decanters, drinking glasses and other glass containers being domestic glassware (heading 70.13), but not containers used primarily for the commercial conveyance or packing of goods.

EN 70.13 provides, in pertinent part, as follows:

This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds: … These articles may be e.g., of ordinary glass, lead crystal, glass having a low coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware). They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles)…. … The heading [EN 70.13] also excludes: … (b) Bottles, flasks, jars, and pots of a kind commonly used for the commercial conveyance or packing of goods, and preserving jars (heading 70.10).

* * * * Headings 7010 and 7013, HTSUS, are “principal use” provisions (Group Italglass, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993)), which are governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides that:

In the absence of special language or context which otherwise requires--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.

The Court in Group Italglass stressed “that it is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.” Group Italglass, 839 F. Supp. at 867. The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. These 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 United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976). See also Lennox Collections v. United States, 20 CIT 194, 196 (1996).

Because the text of heading 7013, HTSUS, excludes goods of heading 7010, HTSUS, the first consideration is whether the merchandise at issue is classifiable in heading 7010, HTSUS. The Court of International Trade provided more specific guidance with regard to heading 7010, HTSUS, in Automatic Plastic Molding v. United States, Slip. Op. 2002-120, (CIT Oct. 5, 2002) (hereafter APM). In APM, the CIT classified an amphora-shaped clear glass container measuring approximately 12.5 inches tall and 24 inches in circumference at its widest point, with two hook-shaped handles protruding from the neck, in heading 7010, HTSUS. The CIT emphasized several factors evidencing the proper classification of the jars therein as packing and conveyancing jars of heading 7010, HTSUS. The Court found the presence of lugs on the glass jars at issue therein to be convincing, indicating that the jars were designed for use in the hot packing process as well as unattractive and unsuitable for use as a long-term storage article. The environment of sale further supported classification in heading 7010, HTSUS; the containers were sold empty to a packing plant, not sold wholesale, and the difference in the wholesale and retail price of the jars was substantial. The Court further noted that the design of the jars aided in the marketing of the food product itself, attracting the attention of consumers and highlighting the attractive quality of the biscotti packaged therein.

The Protestant relies upon APM in support of its argument that the subject jars are classified in heading 7010. However, the instant jars do not resemble the merchandise at issue in APM. The instant jars are attractive, and they are sturdily constructed from thick and durable glass. Moreover, there is no evidence that the jars are designed for use in the hot packing process.

The U.S. Customs Service (now CBP) 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 falls within the class of “containers of glass of a kind used for the conveyance or packing of goods” (heading 7010), or the class “glassware of a kind used for table, kitchen… or similar purposes” (heading 7013). 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 are as follows:

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. The 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.

The articles at issue are manufactured by automatic machines from ordinary glass, and they have a wide opening and a short neck. They are sold to a wholesaler/ distributor who then packs them with mixed nuts. The jars are thus actually used to convey foodstuffs and are not sold separately. In this respect they meet the criteria set out in T.D. 96-7 for conveyancing jars of heading 7010, HTSUS.

However, the jar’s physical features are not indicative of a packaging or conveyancing jar. Because of this, we are of the view that an ultimate purchaser’s primary expectation would be to save the jar after its contents have been used, as opposed to discarding or recycling the article. There is no evidence that the jars are designed for use in the hot packing process. Furthermore, their appearance is attractive, and they are sturdily constructed from thick and durable glass. The jar lids also allow for repetitive and easy opening and closing, as well as the ability to maintain an airtight seal after each use, which are features indicating reusability. The consumer would thus not discard the jars after use, but rather keep them as storage containers (compare this to containers housing substances such as ketchup or mustards, which are disposed of indiscriminately).

In addition, the filled jars are sold in an environment of sale that features the articles themselves at least as much as the goods enclosed within. While an attractive and transparent glass jar may help draw attention to the goods packaged therein, the retailer’s product description suggests a stronger emphasis on the jar itself; the catalog description reads “Glass jar of mixed nuts”, while most of the nuts marketed on the web site of the national retail chain that carries this product are packaged in cardboard, paper or plastic containers, which merely state the contents and volume of the container. Furthermore, the instant jars are of the type typically sold separately as kitchen canisters. See e.g., http://www.amazon.com/ Anchor-Hocking-Square-Canister-Aluminum/dp/B0000CFPSO; http://www.target.com/4-pc-Square-Canister-Set/dp/B0009S5C5Q. Such square glass canister jars are “perfect for storing staples on the counter or presenting homemade gifts,” http://www.containerstore.com/ shop/madeintheUSA/foodStorage/canisters?productId=10006663, thus further indicating that the principal use of the class or kind of goods to which the jars belong is storage/kitchen canisters.

We have also taken into consideration the substantial difference between the wholesale and retail price of the final product. Based on the physical characteristics of the jar, we are of the view that an ultimate purchaser would be willing to pay a higher price for the nuts packed in this particular jar due to the expectation of reusability of the jar.

The Protestant further cites to HQ 963258, dated December 17, 1999 as a basis for the instant protest. The two containers at issue in HQ 963258 were 5” and 7 ¾” high, respectively, with a neck of 1” in diameter, and sealed with a cork. The environment of sale of the jars at issue in HQ 963258 also supported the conclusion that the ultimate purchaser’s primary expectation would be to discard or recycle the container after the conveyed or packed goods are used. The S&M jars are not similar in character or form to the merchandise at issue in HQ 963258. The instant jars are larger, and thus have more inside storage space. Their lids are also easier to remove and replace than a cork, and the plastic gaskets create a more sanitary and efficient seal. Therefore, we do not find the finding to be helpful in this instance. See the following rulings for further discussions on the difference between glass storage containers and containers for the packaging of goods: HQ 966957, dated June 25, 2004; HQ 966105, dated February 27, 2003; HQ 959639, dated October 21, 1997; HQ 959941, dated October 27, 1997; HQ 959942, dated October 27, 1997; HQ 960162, dated October 17, 1997; HQ 960163, dated October 22, 1997; HQ 959637, dated December 4, 1997; HQ 959751, dated October 15, 1997; and HQ 959638, dated October 10, 1997.

Based on the foregoing, we find that the instant articles are not the type of container used to pack and convey goods. Rather, they are the type of containers sold as kitchen canisters. They are not provided for in heading 7010, HTSUS, and we conclude that these articles are principally used for table or kitchen purposes and are classified under heading 7013, HTSUS.

HOLDING:

By application of GRI 1, the Cubi glass storage jars are classified in heading 7013, HTSUS, and specifically under subheading 7013.49.20, HTSUS, which provides for “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): 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.” The 2007 column one, general rate of duty is 22.5%.

You are instructed to deny the protest in full. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP 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 and Trade Facilitation Division