CLA-2 CO:R:C:M 089527 DWS
District Director of Customs
700 Doug Davis Drive
Atlanta, Georgia
RE: Steel Powder Containers; Protest No. 1704-9-1100046
Dear Sir:
This is our decision on Application for Further Review of
Protest No. 1704-9-1100046, dated February 13, 1991, concerning
your action in classifying and assessing duty on steel powder
containers, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).
FACTS:
The merchandise was entered under subheading 7310.29.00,
HTSUSA, which provides for: "[t]anks, casks, drums, cans, boxes
and similar containers, for any material, of iron or steel, of a
capacity not exceeding 300 liters, whether or not lined or heat
insulated, but not fitted with mechanical or thermal equipment:
[o]f a capacity of less than 50 liters: [o]ther." However, the
merchandise was liquidated under subheading 7326.90.90, HTSUSA,
which provides for: "[o]ther articles of iron or steel: [o]ther:
[o]ther: [o]ther: [o]ther."
The containers are cylindrical in shape, 5 inches in
diameter, and 2 inches in height. They are made of steel sheet
and painted in various colors. The lid of each container is
decorated with a reproduction of a late-Victorian painting. On
the bottom of each container is the commercial name of the
powder, a description of its supposed qualities, the net weight,
the name of the distributor, and the words "Keepsake Edition".
ISSUE:
What is the proper classification of the subject steel
powder containers under the HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
The importer claims that the containers are classifiable
under subheading 7310.29.00, HTSUSA. To understand the language
of heading 7310, HTSUSA, the Explanatory Notes may be utilized.
The Explanatory Notes, although not dispositive, are to be used
to determine the proper interpretation of the HTSUSA. 54 Fed.
Reg. 35127, 35128 (August 23, 1989). Explanatory Note 73.10
(p.1022) states in part that:
this heading covers sheet or plate iron or steel containers
of a capacity not exceeding 300 l., but of a size easily
moved or handled, commonly used for the commercial
conveyance and packing of goods, and such containers
installed as fixtures . . . The smaller containers include
boxes, cans, tins, etc., mainly used as sales packings for
butter, milk, beer, preserves, fruit or fruit juices,
biscuits, tea, confectionery, tobacco, cigarettes, shoe
cream, medicaments, etc.
You claim that the containers are classifiable under
subheading 7326.90.90, HTSUSA. Explanatory Note 73.26 (3)
(p.1038) provides that heading 7326, HTSUSA, includes:
[c]ertain boxes and cases, e.g., tool boxes;
botanists', etc., collection or specimen cases, trinket
boxes; cosmetic or powder boxes and cases; cigarette cases,
tobacco boxes, cachou boxes, etc., but not including
containers of heading 73.10 . . .
The subject containers are classifiable under 7310.29.00,
HTSUSA. The powder containers are made of steel, they are easily
moved and handled, and they are commonly used as retail packaging
for conveyance and packing of cosmetic powder.
The containers are not classifiable under subheading
7326.90.90, HTSUSA, for two reasons. First, the subject
containers are not of the type described as "cosmetic or powder
boxes". These types of containers are basically refill boxes of
powder to be put in a container originally bought with the
cosmetic powder. The subject containers are not of this type.
Every time a customer purchases the cosmetic powder, the powder
comes packaged in one of the subject containers. A customer does
not just purchase one container and then refill it with powder
subsequently bought in refill boxes, the type covered under
subheading 7326.90.90, HTSUSA. Second, Explanatory Note 73.26
(3) specifically excludes containers of heading 7310, HTSUSA.
GRI 5(b) does not apply to the subject containers. The rule
provides that "[s]ubject to the provision of rule 5(a) above,
packing materials and packing containers entered with the goods
therein shall be classified with the goods if they are of a kind
normally used for packing such goods. However, this provision
does not apply when such packing materials or packing containers
are clearly suitable for repetitive use."
"The 'repetitive use' described by the second sentence of
GRI 5(b) is the use to which GRI 5 containers are put, i.e., as
containers in which goods are packed at the time of entry; such
containers are normally the containers in which goods are shipped
and are clearly suitable for repetitive use as shipping
containers." (HQ 089527, dated February 20, 1991). The subject
containers will not be repetitively used as packing containers,
and therefore GRI 5(b) does not apply. While the consumer may
retain the emptied container to store pins or other items, this
is not a "repetitive use" pursuant to GRI 5(b).
HOLDING:
The steel powder containers are classifiable under
subheading 7310.29.00, HTSUSA, which provides for: "[t]anks,
casks, drums, cans, boxes and similar containers, for any
material, of iron or steel, of a capacity not exceeding 300
liters, whether or not lined or heat insulated, but not fitted
with mechanical or thermal equipment: [o]f a capacity of less
than 50 liters: [o]ther." The protest should be granted. A copy
of this decision should be attached to Form 19, Notice of Action,
to be mailed to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division