CLA-2 CO:R:C:M 953096 MMC
District Director
U.S. Customs Service
Lincoln Juarez Bridge, Bldg #2
P.O. Box 3130
Laredo, Tx. 78044-3130
RE: Protest No. 2304-92-100016; Glass decorated tumbler;
7013.29.10; Additional U.S. Note 1(a); Kraft Inc. vs. U.S.
Dear District Director:
The following is our decision regarding the request for
further review of Protest No. 2304-92-100016, which concerns the
classification of glass decorated tumblers under the Harmonized
Tariff Schedule of the United States (HTSUS). The entries of the
subject merchandise were liquidated on 11/01/91 and the protest
was timely filed on 1/30/92.
FACTS:
The articles are 10 oz. decorated tumblers. The body is
straight sided and tapered. They are decorated with three
applied-ceramic ducks, depicted in varying positions, which are
separated by vertical rows of florets. The finish is described
in the submitted Manual as AOIG-1714 (WHITE TD-372 ANCHOR LE-
775) SNAP CAP,RESEAL BEAD STYLE GLASS FINISH. The bead style
flange is slightly pronounced (0.125" wide) and used to secure a
reusable lid. Mold seams appear on each side of the container.
The bottom surface contains coded information which identifies
the manufacturer and machine used to produce a particular
container and knurling. Bearing surface knurling are groves used
to aid in gripping a conveyor belt. The containers are imported
empty and without a lid.
After importation, the containers are shipped directly to a
packer where they are filled with jelly and shipped to a
distributor who then sells them to grocery and similar stores.
The protestant claims that the containers are classifiable
under subheading 7010.90.50, HTSUS, which provides for containers
of glass of the kind used for the conveyance or packing of goods.
Upon liquidation, the articles were classified under subheading
7013.29.10, HTSUS, which provides for drinking glasses other than
that of glass ceramics valued not over $0.30 each.
The subheadings under consideration are as follows:
7010.90.50 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:[o]ther:
[o]ther containers (with or without their
closures) Free
7013.29.10 Glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018): [d]rinking glasses, other than of
glass-ceramics: [o]ther: [o]ther: [v]alued
not over $0.03 each 38%
ISSUE:
Are the tumblers principally used as containers for the
conveyance or packing of goods provided for in heading 7010,
HTSUS, or as drinking glasses provided for in heading 7013,
HTSUS?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1, HTSUS, states in part that for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes.
In this case, the relevant headings are headings 7010 and
7013, HTSUS. Both are use provisions. According to Additional
U.S. Note 1(a), [i]n 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.
Protestant cites Kraft Inc. vs. U.S., Slip. Op. 92-93, 26
Cust. Bull. 15 (CIT 1992), (Kraft) as a case that lists factors
to consider when determining whether a particular glass article
belongs to a class or kind of merchandise principally used for
packaging food for commercial conveyance. Kraft is a case
decided under the Tariff Schedule of the United States (TSUS),
the precuser to the HTSUS. Congress has decided that these prior
decisions should be considered instructive in interpreting the
HTSUS, particularly where the nomenclature previously interpreted
in those decisions remains unchanged and no dissimilar
interpretation is required by the text of the HTSUS. H. Rep. No.
100-576, 100th Cong., 2D Sess. 548 (1988) at 550.
Kraft involved the importation of empty glass jars molded in
the shape of a small seated bear. The finish was threaded and
its body had a recognizable shoulder, sidewall, and heel. The
bear shaped jars were filled with jelly in the United States and
used in a promotional program to market the jelly.
Upon liquidation, Customs classified the bear jars under
item 546.52, TSUS, the precursor to subheading 7013.39.00, HTSUS.
Item 546.52,TSUS, in pertinent part provided for "[g]lassware of
a kind used for the table, kitchen, toilet, office, indoor
decoration, or similar purposes other than that of glass
ceramics; [o]ther". The importer protested this classification
and offered item 545.27, TSUS, the precursor to heading 7010, as
the proper classification.
The court determined that both items were use items,
therefore General Headnote 10(e)(i),TSUS, applied. General
Headnote 10(e)(i) was the precursor to Additional U.S. Note 1(a),
HTSUS. Additional U.S. Note 1(a) remains relatively unchanged
from its TSUS precursor.
When determining what class or kind the article belonged to,
the court considered the general physical characteristics of the
merchandise, the expectation of the ultimate purchaser, the
channels of trade in which the merchandise moves, the environment
of sale, and the use of the article. When the court applied
these factors they determined that the bear shaped jars were not
of the class or kind of other household glassware but rather, of
the class or kind of glassware used for the commercial conveyance
of food.
The protestant in this case applies the criteria of Kraft to
the container and concludes that it is not used in the same
manner defined by the class or kind "drinking glass" but as a
container for packing food. Therefore, it's principal use is as
a container for packing food. We agree. While both uses are
possible as imported, the container's principal use is as a food
packing jar.
The physical characteristics of the tumbler indicate, that
at the time of importation, it is principally used as a container
for packing food and not as a drinking glass. The design for hot
packing, mold seams, knurling, and embedded manufacturing
information of the tumbler all indicate that this is a container
principally designed for packing food.
As in Kraft, the present containers are designed for use in
the hot packing process which indicates their prinicipal use as
food packing jars. The mold seams on the container are created
by a manufacturing process which is used only to create food
packing jars. Drinking glasses have no seams and are created by
a different process. The bearing surface knurling are placed on
the jar for better gripping of a conveyor belt during the filling
process. Drinking glasses do not have bearing surface knurling.
Finally, each jar contains an embedded code on the bottom which
allows the jar to be traced back to its place of manufacture.
Drinking glasses do not not have these codes embedded in the
glass.
According to Kraft, ultimate purchasers may be attracted to
food in glass jars because the design of the jar attracts their
attention. While this jar appears to be designed for future use
as a drinking glass, we have no information that indicates that
ultimate purchasers are attracted to the containers because of
their possible use as drinking glasses and not because of their
decoration.
Furthermore, the containers travel in the same channel of
trade as the jars in Kraft. After importation, the containers
are shipped directly to a packer who fills them and sells them to
a retailer.
The physical characteristics and recognition in the trade
indicate that at the time of importation, the jars are
principally used as food packing jars. Therefore, they are
classifiable in subheading 7010.90.50, HTSUS.
HOLDING:
For the foregoing reasons, we find that the BAMA tumblers
are classifiable under subheading 7010.90.50, HTSUS, as
containers used primarily for the commercial conveyance or
packing of goods.
The protest should be granted in full. A copy of this
decision should be attached to the Customs Form 19 and provided
to the protestant as part of the notice of action.
Sincerely,
John Durant, Director
Commercial Rulings