CLA-2 CO:R:C:M: 956218 MMC

District Director
U.S. Customs Service
10 Causeway Street
Boston, MA 02222-1059

RE: Protest 0401-93-100671; Containers, Tins, Metal Biscuit/food Canisters; 7310.29.00; NYRLs 894758, 880066; PC 865788; EN 73.10, 73.23

Dear District Director:

The following is our response to the request for further review of Protest 0401-93-100671 concerning your action in classifying and assessing duty on various metal biscuit/food canisters under the Harmonized Tariff Schedule of the United States (HTSUS).


The subject articles are highly decorated painted metal canisters. Pictures submitted indicate that these articles are made in a variety of shapes and sizes. Invoice and packing lists identify the various canisters by describing their painted designs. These designs vary, but appear to have a circa 1930's theme. Various slogans for products of the 1930's are printed on some of the canisters. Others have an English or Italian country village motif. Protestant indicates that they are imported empty. Protestant did not indicate the articles' constituent metal.

The subject articles were entered under subheading 7310.29.00, HTSUS, as tanks, casks, drums, cans, boxes and similar containers of iron or steel. However, the entry was liquidated on January 3, 1994, under subheading 7323.99.90, HTSUS, as table, kitchen and other household articles, of iron or steel. The protest was timely filed on January 12, 1994.

The headings under consideration are as follows:

7310 Tanks, casks, drums, cans, boxes and similar containers, for any material (other than compressed or liquefied gas), 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

7323 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 or iron or steel

According to protestant, another importer of the subject articles obtained a pre-entry classification determination (PC) which classifies the subject articles under heading 7310, HTSUS. See, PC 865788 dated August 14, 1991.


Whether the painted canisters are classifiable as other containers of iron or steel or as table, kitchen or other household articles of iron or steel.


Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). 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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 73.10, pg. 1022, states, in pertinent 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 [covered by this heading] include boxes, cans, tins, etc., mainly used as sales packing for butter, milk, beer, preserves, fruit or fruit juices, biscuits, tea, confectionery, tobacco, cigarettes, shoe cream, medicaments, etc.

...This heading also excludes:

...(b) Biscuit barrels, tea caddies, sugar tins and similar household or kitchen containers and canisters (heading 73.23)

EN 73.23, pgs. 1035-1036, states, in pertinent part, that:


This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes;...

...These articles may be cast, or of iron or steel sheet, plate, hoop, strip, wire, wire grill, wire cloth, etc., and may be manufactured by any process (moulding, forging, punching, stamping, etc.). They may be fitted with lids, handles or other parts or accessories of other materials...

...The group includes:

(1) Articles for kitchen use such as saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles; basins; frying pans, roasting or baking dishes and plates; gridirons, ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.); salad washers; kitchen type capacity measures; plate racks, funnels.

Based on the evidence presented, it is our opinion that the subject canisters are of a type described by EN 73.23. The articles are imported empty. They are highly decorated and appear to be hand painted. Customs believes that this practice is usually more expensive and durable than machine painting and tends to emphasize the articles' decorative nature. Finally, while some submitted pictures show containers holding cookies, candies, coffee, sewing accessories and pasta, nothing in protestant's submission demonstrates that the canisters are mainly used for the commercial conveyance or packing materials of goods. Therefore, the articles are classifiable under subheading 7323.99.90, HTSUS, as other table, kitchen and other household articles, of iron or steel. Because protestant did not provide the articles' constituent metal, classification under subheading 7323.99.50, HTSUS, as table, kitchen and other household articles of tinplate is precluded.

This conclusion is consistent with two other Customs rulings. New York Ruling Letter (NYRL) 880066, dated November 17, 1992, held that a small can made of tinplate with a painted lily and removable top was classifiable under subheading 7323.99.50, HTSUS. Similarly, NYRL 894758, dated February 24, 1994, determined that a set of three tinplate cylindrical canisters with removable lids was classifiable under the same subheading.

Protestant cites PC 865788 as precedent for classifying the subject articles as containers. We disagree. The pre-entry classification determination merely states "Tins (empty)" and provides a subheading with duty rate, without providing a description of the article classified. Because pre-classification determinations rarely provide complete article descriptions and are not published or made generally available to the public, Customs maintains that they are only binding for their recipient importer. They cannot be relied upon by another party and have no precedential value other than for the recipient.


The subject canisters are classifiable under subheading 7323.99.90, HTSUS, which provides for other table, kitchen and household articles of iron or steel.

The protest should be denied. In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office 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 take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division