CLA-2 RR:CR:GC 959638 PH

Port Director
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202

RE: Protest 1303-96-100144; glass containers; triangle jar with cork lid; conveyance or packing of goods; preserving jars of glass; glassware for table or kitchen decoration; household glass storage articles; principal use; eo nominee; 7010; 7013; EN 70.10; EN 70.13; U.S. Additional Note 1(a); T.D. 96-7; Myers v. United States, CIT Slip Op. 97-75; Group Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993); Kraft, Inc, v. United States, 16 CIT 483 (1992); G. Heilman Brewing Co. v. United States, 14 CIT 614 (1990); United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976); HRLs 087779; 953952

Dear Port Director:

This is in response to Protest 1303-96-100144, which pertains to the tariff classification of certain triangle jars of glass with cork lids under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our review.

FACTS:

The merchandise under protest consists of a 3-sided glass jar (so that the bottom of the jar forms a triangle), invoiced as "10 [INCH] TRIANGLE JARS WITH CORK" (although not described by the protestant, one of the protested entries is for "23 [INCH] 12 SIDED JAR GREEN/BLUE WITH CORKS"). The sides of the 10 inch triangle jars are approximately 8 « by 3 « inches. The jar has a round opening (approximately 1 3/4 inches in diameter) with a slightly raised rim. The lid is of cork. The glass is quite heavy and has a turquoise tint. According to the invoices in the file, the jars are imported empty with the corks. No evidence is provided as to the use of these particular jars, although the importer is "[...] House of Nuts". Value, according to the invoices, was $.61 for all but two of the entries. In the case of the other entry of jars meeting the above description, the invoiced value was $.72. In the case of the jar invoiced as a 23 inch jar with 12 sides, the invoiced value was $4.85.

Seven entries of merchandise are included in the protest. The dates of entry are between September 8 and October 12, 1995. According to the entry summaries, the importer classified the merchandise under subheading 7010.90.50, HTSUS. The entries were liquidated on February 16, 1996, with classification under subheading 7013.39.20, HTSUS (except for the entry with 23 inch 12-sided jars, in which case classification was under subheading 7013.39.50, HTSUS).

On March 20, 1996, the importer filed the protest contending that glassware of the type in the protested entries has "... traditionally been entered and liquidated under [subheading] 7010.90.5050, [HTSUS,] free of duty." The protestant cites Treasury Decision (T.D.) 96-7, which it states "... [made] the imported goods subject to duty under [subheadings] 7013.39.2000 and 7013.39.5000 ..." The protestant argues that since T.D. 96-7 was effective regarding merchandise entered for consumption or withdrawn from a warehouse for consumption on or after February 2, 1996, and since the protested entries were entered for consumption prior to this date, the entries should be reliquidated, with classification as entered.

The competing subheadings, as of the time under consideration, are as follows:

7010.90.50: [c]arboys, 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.

Goods classifiable under subheading 7010.90.50 receive duty-free treatment.

7013.39 [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 of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: ... [o]ther: ... [o]ther.

The 1995 general column one rate of duty for goods classifiable under subheading 7013.39.20 (... [v]alued not over $3 each) is 29.2% ad valorem. The 1995 general column one rate of duty for goods classifiable under subheading 7013.39.50 (... [o]ther: [v]alued over $3 but not over $5) is 15% ad valorem.

ISSUE:

Are the 10 inch triangle jars and 23 inch 12-sided jars, each with cork lids, classifiable as containers of a kind used for the conveyance or packing of goods, preserving jars of glass, or glassware of a kind used for decoration or similar purposes?

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and that the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in pertinent part, that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.

The Harmonized Commodity Description And Coding System Explanatory Notes (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. Customs believes the ENs should always be consulted. See T.D. 89-80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).

Protestant's contention that this merchandise would have been classified under subheading 7010.90.50, HTSUS, before T.D. 96-7 is concerned is incorrect. See, e.g., HRL 087779, dated December 27, 1990, which classified a variety of glass jars, including a triangle shaped glass storage jar with a metal cover and handle that was 12 3/4 inches tall and a round glass storage jar with a cork stopper style cover that was 12 inches tall under subheading 7013.39.20, HTSUS (see also, HRL 953952, dated September 22, 1994, and the rulings cited therein). The jars in HRL 087779 are similar to the merchandise in this case in all material respects.

Under "EFFECTIVE DATE" in T.D. 96-7, it is stated that "[a]ny changes in tariff classification resulting from the implementation of these guidelines and any revocation of inconsistent rulings will be effective regarding merchandise entered for consumption or withdrawn from a warehouse for consumption on or after February 2, 1996"). As shown above, the tariff classification of the protested merchandise was in accordance with Customs rulings prior to T.D. 96-7 and the T.D. did not result in any changes in tariff classification for the merchandise.

In this case, the competing headings are 7010 and 7013, HTSUS. Heading 7010, HTSUS, provides for glass containers of a kind used for the conveyance or packing of goods, preserving jars of glass, and certain closures. Heading 7013, HTSUS, provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, not including glassware covered in heading 7010.

The provision for preserving jars of glass in heading 7010, HTSUS, is an eo nomine provision (Myers v. United States, CIT Slip Op. 97-75, decided June 17, 1997). The provision in heading 7010, HTSUS, "of a kind used" for the conveyance or packing of goods is a "principal use" provision (Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993)). Merchandise which is properly classifiable under heading 7010 cannot be classified under heading 7013, because of the specific parenthetical provision to that effect in heading 7013 (Myers, supra).

The provision for preserving jars of glass in heading 7010 was considered in Myers, supra. That case concerned certain jars with wire bail and rubber ring closure systems. The Court found the jars to be classifiable under the provision for "preserving jars of glass" in heading 7010, HTSUS. The Court concluded that:

The three fundamental feature[s] which distinguish preserving' jars from packing and conveyance' jars and storage' jars are: (1) the thickness of the glass in the walls of the jars; (2) the jar's ability to form and maintain a hermetic seal; and (3) the jar's potential for reuse as a canning or preserving jar.

In this case, although the walls of the jars are composed of thick glass, the jar has no ability to form and maintain a hermetic seal, nor is there any indication that the jar has potential for reuse as a canning or preserving jar. The jars in this case are not "preserving jars of glass" and may not be classified under that provision.

The other competing provisions (containers of glass of a kind used for the conveyance or packing of goods in heading 7010 and glassware of a kind used for table or kitchen decoration or similar purposes in heading 7013) are "use" provisions (see above). If an article is classifiable according to the use of the class or kind of goods to which it belongs, as is true of these provisions, 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 in the United States at the time of importation determines whether it is classifiable within a particular class or kind.

The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular 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, 16 CIT 483 (1992), G. Heilman Brewing Co. v. United States, 14 CIT 614 (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 (1976).)

In applying Additional U.S. Rule of Interpretation 1(a), HTSUS, and the above cases to heading 7010, it is Customs position that, as a general rule, a glass article's physical form will indicate its principal use and thus to what class or kind it belongs. However, should an exception arise so that 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 principal use criteria.

The EN for heading 7010 is helpful in this analysis. EN 70.10 states, in pertinent part: "This heading covers all glass containers of the kind commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). ..." The key phrase in the quoted material is "commonly used commercially for the conveyance or packing" of liquids or solid products. The root word of "commercially" is commerce which is described as the exchange or buying and selling of commodities. The Random House Dictionary of the English Language (1973), p. 295, and Webster's New World Dictionary (3rd Coll. Ed.) (1988), p. 280. The root word of "conveyance" is convey which is described as to carry, bring or take from one place to another; transport; bear. Supra, at p. 320 and p. 305, respectively.

The classification of the jars considered in HRL 087779 (referred to above) was on the above basis. The ruling states:

"The jars at issue are not used commercially. ... They are household jars that are used as canisters in the kitchen to hold various types of food. ...

Similarly, the jars in this case are of a kind used (i.e., principally used) for table or kitchen purposes, i.e., household storage articles, and not as "... containers of the kind commonly used commercially for the conveyance or packing of liquids or of solid products" (EN 70.10). The jars are classifiable as 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, in subheading 7013.39.20, HTSUS (the 23 inch jar with 12 sides, with an invoice value greater than $3 but not over $5, is classifiable in subheading 7013.39.50, HTSUS).

HOLDING:

The pieces of glassware described in the FACTS (10 inch triangle jars and 23 inch 12-sided jars, each with cork lids) are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes, in subheading 7013.39.20 or 7013.39.50, HTSUS, depending on value.

The protest is DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed, with the Customs Form 19, 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 Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director,
Commercial Rulings Division