OT:RR:CTF:CPM H266055 CkG
TARIFF NO: 7013.49.20
Port Director
U.S. Customs and Border Protection
Port of Newark
1210 Corbin Street
Elizabeth, NJ 07201
ATTN: Asude Deniz, Import Specialist
Re: Application for Further Review of Protest No. 4601-15-100405; classification
of glass water bottles
Dear Port Director,
This is in response to the Application for Further Review of Protest 4601-15-100405. The Protest and AFR were filed on behalf of Lifefactory, Inc. (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of five entries of glass water bottles in heading 7013 of the Harmonized Tariff Schedule of the United States (HTSUS).
Protestant entered the protested merchandise between March 2, 2014 and March 26, 2014, in heading 7010, HTSUS. The entries were liquidated on March 6, 2015, in heading 7013, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. Protestant’s current position is that the subject merchandise should be classified in heading 7020, HTSUS, as other articles of glass.
FACTS:
At issue are three glass water bottles, with a capacity of 12, 16 and 22 ounces, respectively. The 22 ounce water bottle is 8.9 inches high, 2.9 inches wide (at its widest point), and weighs 1.2 lbs. The bottles are constructed of Type 3 pharmaceutical grade soda-lime glass. The wall thickness ranges from .134 inches-.146 inches. At the time of importation, the bottles are unaccompanied by any accessories; however, they are all sold with a silicon protective sleeve and a cap with a built-in straw and handle.
ISSUE:
Whether the instant glass bottles are classified in heading 7013, HTSUS, as glassware for table or kitchen purposes, or in heading 7020, HTSUS, as other articles of glass.
LAW AND ANALYSIS:
The matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (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) (2006)).
Further Review of Protest No. 4601-15-100405 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 and legal notes do not otherwise require, the remaining GRIs 2 through 6 may be applied in order.
The 2015 HTSUS provisions under consideration in this case are as follows:
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 of glass-ceramics:
7013.49: Other:
Other:
7013.49.20: Valued not over $3 each…
7020: Other articles of glass:
7020.00.60: Other…
* * * * *
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The relevant ENs for heading 70.13, provide in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
Table or kitchen glassware, e.g. drinking glasses, goblets, tankards,
decanters, infants’ feeding bottles, pitchers, jugs, plates, salad bowls, sugar-bowls, sauce-boats, fruit-stands, cake-stands, hors d’oeurvre dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pots and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee-mills, cheese dishes, lemon squeezers, ice-buckets.
Toilet articles, such as soap-dishes, sponge-baskets, liquid soap
distributors, hooks and rails (for towels, etc.), powder bowls, perfume bottles, parts of toilet sprays (other than heads) and tooth-brush holders.
Office glassware, such as paperweights, inkstands and inkwells, book ends,
containers for pins, pen-trays and ashtrays.
Glassware for indoor decoration and other glassware (including that for
churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table-centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs bearing views.
The relevant ENs for heading 70.20, provide, in pertinent part:
This heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature.
These articles remain here even if combined with materials other than glass, provided they retain the essential character of glass articles.
* * * * *
The two headings under consideration are heading 7013 and 7020, HTSUS. Heading 7013 provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, and heading 7020 provides for other articles of glass. Thus, the instant glass bottles can only be classified in heading 7020 if they are excluded from heading 7013, HTSUS.
Heading 7013, HTSUS, is a “principal use” provision (Latitudes Int'l Fragrance, Inc. v. United States, 931 F. Supp. 2d 1247, 1252 (CIT 2013), Dependable Packaging Solutions, Inc. v. United States, 757 F.3d 1374, (Fed Cir. 2014), governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides that a tariff classification controlled by use (other than actual use) is to be determined in accordance with the principal 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. 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, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993).
In addition, the courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise is classifiable under a particular “principal use” tariff provision. 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).
Heading 7013 is organized as a list of categories of glass articles, including tableware and kitchenware. The EN to heading 7013 further provides a list of exemplars of glass table and kitchenware. Those exemplars are drinking glasses, goblets, tankards, decanters, pitchers, jugs, etc. Many of the exemplars of "tableware" in EN 70.13 that are classifiable under this heading are items from which the consumer can directly consume beverages or food, a primary characteristic shared with the subject bottles. The scope of the term “table or kitchen glassware in heading 7013 includes items which contain food and beverages, for use inside or outside of the home. The primary purpose of the bottles at issue is to hold or contain beverages; therefore, the instant bottles are used in the same manner as the class of goods known as table and kitchen ware.
Protestant argues that the instant bottles cannot be classified in heading 7013, HTSUS, because they are designed and marketed for use in sports, and are not sold in the same channels of trade as those named in the heading. We agree that the instant water bottles are sturdy, reusable containers that hold water and other beverages. Their oblong shape, cap and straw facilitate the transport and consumption of beverages outside the home. However, at 1.2 lbs., the bottles are significantly heavier than stainless steel or plastic sports water bottles. The glass is also more fragile than other materials, requiring a special protective sleeve to reduce the chance of breakage. The physical design of the bottles is therefore not especially conducive to sports. The bottles are not marketed on the Protestant’s website as sports water bottles; any difference in marketing—e.g., between the “Active Flip Cap” and the “Axis Straw Cap”—appears to be entirely based on the type of cap, with the “Active Flip Cap” promoted for “high intensity activities” and the pivoting straw cap for “easy drinking from a range of angles”. As the bottles are imported alone and there is no apparent difference between the bottles used with either cap, we do not find that the bottles are designed or marketed for use in sports.
Protestant argues that the bottles are sold in the same channels of trade as sporting goods, in stores such as REI, Eastern Mountain Sports, Sports Basement, and Athleta. Protestant acknowledges that the water bottles are also sold in stores that carry some household goods but that the bottles are displayed alongside health and exercise products in these stores, as opposed to alongside glass kitchen or tableware. The channels of trade of the instant bottles is inconclusive as to either use; we have found the bottles sold in household goods stores such as Bed Bath and Beyond, and in the home and kitchen departments of online retailers such as Amazon, but also in the sports and outdoors departments of Target and Walmart.
Here, the primary purpose of the subject bottle is to dispense beverages that its user can directly consume, whether in a home or elsewhere. It is not used for storage. Based on the foregoing analysis, the instant bottles are therefore of a kind with the goods of heading 7013, and are classifiable under that heading. The merchandise cannot therefore be classified in heading 7020, HTSUS.
As to the applicable subheading, we note that the expression "tableware" does not solely refer to items used in the home. Subheading 7013.49, HTSUS, provides for all table and kitchen glassware, regardless of whether it will be used inside or outside of the household. Accordingly, we find that the subject glass water bottle constitutes "tableware" and is properly classifiable under subheading 7013.49.50, HTSUS, as [g]lassware of a kind used for table, kitchen, toilet, office. See e.g., Headquarters Ruling Letter (“HQ”) H145554, dated May 27, 2015 (affirming NY N136191, dated December 22, 2010) and New York Ruling Letter (NY) N123039, dated October 5, 2010, concerning glass water bottles with accompanying sleeves.
Protestant cites to two rulings in support of its claimed classification under heading 7020, HTSUS: NY N249070, dated January 21, 2014 (classifying a stainless steel water bottle in heading 7326, HTSUS, as an “other article of iron or steel”) and HQ H188898, dated November 25, 2013 (classifying a plastic sports water bottle in heading 3926, HTSUS, as an “other article of plastic”). However, as neither of these rulings addresses heading 7013 or articles of glass, they are not applicable to the instant merchandise. HQ H145554, NY N136191, and NY N123039, on the other hand, directly address the classification of glass water bottles in heading 7013 and are therefore binding on this matter.
Moreover, CBP has, in numerous rulings, classified water bottles of plastic or steel for use outside the home in headings 3924, HTSUS (“Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics”) and 7323, HTSUS (“Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel”). See e.g., NY N019128, dated November 28, 2007 (plastic bottle with pop-up drinking spout in heading 3924, HTSUS); NY N031727, dated July 23, 2008 (plastic water bottle with spout and carrying handle in heading 3924, HTSUS); NY N035015, dated September 5, 2008 (plastic bottle with spout and loop handle in heading 3924, HTSUS); NY N047581, dated January 20, 2009 (plastic bottle with twist spout in heading 3924, HTSUS); NY N048029, dated January 26, 2009 (plastic bottle with straw, carrying handle, mouthpiece and straw in heading 3924, HTSUS); NY N254461, dated September 10, 2014 (stainless steel water bottle with sipping spout in heading 7323, HTSUS); NY D84659, dated January 4, 1999 (stainless steel thermal bottle in heading 7323, HTSUS); NY N053820, dated March 12, 2009 (stainless steel bottle and travel mugs in heading 7323, HTSUS); and HQ H100800 and HQ H100801, dated December 23, 2011 (plastic sports beverage bottles in heading 7323, HTSUS). The classification of the instant water bottles in heading 7013, HTSUS, is therefore consistent with CBP practice.
HOLDING:
By application of GRIs 1 and 6, the instant glass water bottles are classified in heading 7013, specifically subheading 7013.49.20, HTSUS, which provides for “[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 used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: Other: Other: Valued not over $3 each.” The 2015 column one, general rate of duty is 22.5% ad valorem.
You are instructed to deny the protest.
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 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 online at http://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