RR:TC:MM 957873 MMC
Mr. Ben Rickert
Ben Rickert Inc.
359 Newark Pompton Turnpike
P.O. Box 440
Wayne, New Jersey 07474-0440
RE: DD 806907 Revoked; Half moon-shaped jars; 7013.39.30; Additional U.S. Rule of Interpretation 1(a); EN 70.10
Dear Mr. Rickert:
This is in reference to your letter of March 29, 1995, requesting reconsideration of District Decision (DD) 806907 in which you were advised of the classification of recycled glass half moon-shaped jars under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and a catalog were provided.
In DD 806907 dated March 1, 1995, the District Director of Customs, Ogdensburg, New York, advised your customs broker that the subject articles were classified under subheading 7013.39.20, 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. You believe the jars could be considered containers of a kind used for the conveyance or packing of goods, classifiable under heading 7010, HTSUS.
Pursuant to section 625(c)(1) Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186), notice of the proposed revocation of DD 806907 was published October 18, 1995, in the Customs Bulletin, Volume 29, Number 42. No comments were received in response to the notice.
FACTS:
The subject articles are green tinted jars described on the invoice as "half moon jars". They are made of an exceptionally thick glass and measure 3 " wide by 7" long and 5¬" tall. The jars' bases are rectangular. They have an inward slope rising from the base. A short wide neck meets the sides at the top of the jars. At the top of the neck is a lip measuring approximately 1". The lip is wider than the neck which creates an "overhang" of the lip. The diameter of the mouth of the jars measures 2 3/16" and is closed with a round piece of cork. The name of your cosmetic bath products company, together with knurling, are molded into the bottom of the jar. Additionally, mold seams can be seen on the sides of the jars. The jars are produced by a semi-automatic machine and are valued at 83› a piece.
According to the information provided, the manufacturer created the jars from unique specifications created specifically for your cosmetic bath products company and you are the only importer of the half moon-shaped jar. The company's catalog states: "Packaging: We've created upscale packing for high visual impact on display".
ISSUE:
Are the half moon-shaped glass jars classified as containers of a kind used for the conveyance or packing of perfume or other toilet preparations under 7010.90.20, HTSUS, or as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under subheading 7013.39.20, HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is governed by 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...."
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires. The subheadings under consideration are as follows:
7010.90.20 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: Closures imported separately; containers (with or without their closures) of a kind used for the conveyance or packing of perfume or other toilet preparations; other containers if fitted with or designed for use with ground glass stoppers: Produced by automatic machine ...................................................................................................................3.5%
7013.39.20 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 over not over $3 each.................29.2%
Subheadings 7010.90.20 and 7013.39.20, HTSUS, are use provisions. There are two principal types of classification by use:
(1) according to the actual use of the imported article; and
(2) according to the use of the class or kind of goods to which the imported article belongs.
Use according to the class or kind of goods to which the imported article belongs is more prevalent in the tariff schedule. A few tariff provisions expressly state that classification is based on the use of the class or kind of goods to which the imported article belongs. In Group Italglass U.S.A. v. United States, USITR, 17 CIT ____, Slip Op. 93-46 (Mar. 29, 1993), the CIT held that: "the language in heading 7010, "of a kind used for" explicitly invokes use as a criterion for classification and in heading 7010, principal use is controlling." As subheadings 7010.90.20 and 7013.39.20, HTSUS, contain the language "of a kind used for" they are both considered principal use provisions.
When an article is classifiable according to the use of the class or kind of goods to which it belongs, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that: in the absence of special language or context which otherwise requires-- (a) 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether particular merchandise falls within a class or kind. They 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: Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. Application of the characteristics will determine to which class or kind the half moon-shaped jar belongs; glass storage articles or containers for the conveyance or packing of cosmetics.
As a general rule, a glass article's physical form will indicate an article's principal use and thus to what class or kind it belongs. Should, however, an exception arise and an article's physical form does not indicate to what class or kind it belongs or its physical form indicates it belongs to more than one class or kind, Customs considers the other enumerated criteria.
The half moon-shaped jars have physical characteristics from each of the suggested class or kinds. Their embedded name, knurling and mold seams are all physical characteristics that indicate they belong to the class or kind of glass containers principally used to commercially pack and convey cosmetic products. However, their unique shape, thickness of the glass, their fired wide lip and tinted color all indicate their nature as a decorative/storage article. We note that while this jar has a unique shape, a unique shape is not necessarily inconsistent with containers principally used to convey and pack cosmetic products. Because the physical form does not clearly indicate the class to which half moon-shaped jars belong, we must consider the other enumerated criteria.
The expectation of reuse by the ultimate purchaser is indicated by the easily removable cork, and the jars' general decorative nature. However, the channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), and use in the same manner as merchandise which defines the class, all indicate that the jars belong to the class or kind of glass containers of a kind used for the conveyance or packing of perfume or other toilet preparations.
According to the information provided, the jars are specifically made for the cosmetic bath products company and are sold from manufacturer to importer who then packs them with cosmetic bath products for retail sale. According to the importer, the containers do not pass through any other channel of trade, nor are they sold in any other manner. Additionally, the catalog statement "Packaging: we created upscale packing for high visual impact on display" indicates that the glass jars are principally used to pack or convey bath products. Finally, these articles are used in the same manner as was intended for the class or kind glass containers for the conveyance or packing of perfume or other toilet preparations.
This application of the principal use criteria to the half moon-shaped jar is consistent with the Explanatory Notes. Explanatory Note (EN) 70.10 of the Harmonized Commodity Description and Coding System (HCDCS) states that heading 7010 "covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.)." HCDCS, p. 933. The types of containers covered by this heading 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...
HCDCS, p. 933- 934. The ENs constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80.
We are of the opinion that the subject articles are principally used for the conveyance or packing of perfume or other toilet preparations, contemplated by subheading 7010.90.20, HTSUS.
HOLDING:
The glass half moon-shaped jars are classified under subheading 7010.90.20, HTSUS, with a general 1 column duty rate of 3.5% ad valorem.
DD 806907 is revoked. In accordance with 19 U.S.C. 625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].
Sincerely,
John Durant, Director
Tariff Classification Appeals Division