CLA-2 RR:CR:GC 959941 PH

Port Director
U.S. Customs Service
33 New Montgomery Street, # 1501
San Francisco, CA 94105

RE: Protest 2809-96-101228; various glass containers; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household 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); Commercial Aluminum Cookware Co. v. United States, 938 F. Supp. 875 (CIT 1996); 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); HRL 959639; untimely protest; 19 U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e); Myers v. United States, CIT Slip Op. 97-75; Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463 (1989), rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991)

Dear Port Director:

This is in response to Protest 2809-96-101228, which pertains to the tariff classification of certain articles of glass under the Harmonized Tariff Schedule of the United States (HTSUS). Pictorial representations were submitted for our review.

FACTS:

The merchandise consists of various glassware, as described in the following table (based on pictorial representations and information obtained from the importer). Glassware under the February 23, 1996, entry is not described because the protest was untimely as to that entry (see below) (for future reference, classification of items in the February 23, 1996, entry should be in accordance with HRL 959639, dated October 21, 1997, copy enclosed, and this ruling). Information is available only on the described glassware; based on the entry documentation for the February 23, 1996, entry, other glassware may have been imported under the protested entries and may have been liquidated under subheading 7010.91.50 or 7010.92.50, HTSUS, free of duty; this ruling does not address whether the classification of such items was correct.

Code/Ref. Denomination & Size Description

B0378 Vaso Lubo Spaghetti 2275 [ml.; unless otherwise indicated, this figure represents milliliters] Cylindrical shape with enlarged base ("spaghetti jar" shape), tall, no neck, very large opening with cork lid, rim.

B0822 Vaso Barilotto 2000 Keg or barrel shape with rope handle (rope goes around the article), large opening, small neck rises from side of barrel, rim, spigot in top of barrel opposite the opening.

B4300 Borgognotta RC 750 Cylindrical shape, then gradual diminishing of diameter to neck (standard wine bottle shape), moderate length neck, small opening, rim.

B5348 Cono Nero 500 Conical shape (diminishing of diameter upwards) (similar to an Erlenmeyer flask in shape), moderate length neck, small opening, rim.

B5936 Obelisco 250 Four sides, width diminishes upward and then enlarges to same size as base, then diminishes gradually to form an obelisk shape, very short or no neck, small opening. [Picture very unclear.]

00574 Anfora Giglio 250 Six sides with one handle, long cylindrical neck, moderate sized opening, rim (possibly with a pouring channel) (similar to a pitcher or cruet in shape).

00988 Vaso Trangolare 500 Three sides diminishing in width upwards (creating triangle sides), very short neck, large opening, rim.

00990 Vaso Trangolare 750 Same as 00988 except for size.

02273 Uvina Mignon 40 Pitcher shape (wide base, narrowing then widening (appears to have grape-like pattern embossing in wide part) before narrowing to neck, tall, handle, moderate sized opening, moderate length neck, pouring lip (with channel), lid of cork.

05553 Cuore 250 Round base, diameter diminishes then enlarges into globular shape (larger than base, appears to have decorative embossing), short neck, small opening, rim.

Four entries, of February 23 through April 9, 1996, are included in the protest. The first entry was liquidated on June 14, 1996, and the other entries were liquidated on August 16, 1996, with classification of the protested articles under subheading 7013.39, HTSUS.

On September 13, 1996, the importer protested, stating in block 9 of the protest form ("DETAILED REASONS FOR PROTEST AND/OR FURTHER REVIEW"):

I respectfully request a full duty refund for all glassware classified at 7013. I request all merchandise classified at 7013 be reclassified at 7010/duty free. ...

The Customs Protest and Summons Information Report (Customs Form 6445) prepared by the Import Specialist states that the importer's position is that:

No imported bottles are dutiable and all bottles are classifiable as 7010.92.50/Free. Importer claims that all bottles are imported empty and sold to customers that fill them. ...

Further review was requested and granted.

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

7010: [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.

Goods classifiable under subheading 7010.91.50 (... [o]ther, of a capacity: [e]xceeding 1 liter: ...[o]ther containers (with or without their closures)) or subheading 7010.92.50 (... [o]ther, of a capacity: ... [e]xceeding 0.33 liter but not exceeding 1 liter: ...[o]ther containers (with or without their closures)) receive duty-free treatment.

7013: [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).

The 1996 general column one rate of duty for goods classifiable under subheading 7013.39.20 (... [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: [v]alued not over $3 each) is 28.5% ad valorem. The 1996 general column one rate of duty for goods classifiable under subheading 7013.39.50 (... [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: ... [v]alued over $3 each: ... [o]ther: [v]alued over $3 but not over $5 each) is 15% ad valorem. The 1996 general column one rate of duty for goods classifiable under subheading 7013.39.60 (... [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: ... [v]alued over $3 each: ... [o]ther: ... [v]alued over $5 each) is 7.2% ad valorem.

ISSUE:

Was the protest timely and, if timely, is the glassware 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 as to the February 23, 1996, entry, the protest was untimely (i.e., protest must be filed within 90 days after but not before the notice of liquidation (19 U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e)); notice of liquidation was dated June 14, 1996, and the protest was filed September 13, 1996, 91 days after the notice of liquidation (16 days in June, 31 days in July, 31 days in August, and 13 days in September). For an example of the judicial treatment of a protest filed 1 day after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991). The protest must be denied as to the February 23, 1996, entry. As to the remaining entries, the protest was timely filed (see above) and 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).

The provision for preserving jars of glass in heading 7010 is an eo nomine provision (Myers v. United States, CIT Slip Op. 97-75, decided June 17, 1997). The provision in heading 7010 for containers "of a kind used" for the conveyance or packing of goods and the provision in heading 7013 for glassware "of a kind used" for table or kitchen purposes are "principal use" provisions (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 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. 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, the glass containers have no ability to form and maintain a hermetic seal, nor is there any indication that the containers have potential for reuse as canning or preserving jars (the pictorial representations are not clear enough to indicate whether the containers are composed of thick glass). The containers 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 (principal use is distinguished from actual use; a tariff classification controlled by the latter is satisfied only if such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the goods are entered (U.S. Additional Note 1(b); 19 CFR 10.131 - 10.139); as stated above, the competing provisions are principal use provisions, not actual use provisions).

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, 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) 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.

Based on the above authorities Customs issued Treasury Decision (T.D.) 96-7 which, among other things, adopted certain criteria as indicative, but not conclusive, of whether a particular glass article qualifies as part of the class "containers of glass of a kind used for the conveyance or packing of goods" in heading 7010 or the class "glassware of a kind used for table or kitchen purposes; glass storage articles" in heading 7013. T.D. 96-7 is effective as to the protested entries (see the "EFFECTIVE DATE" section of T.D. 96-7, according to which "[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").

The criteria in T.D. 96-7 for containers of glass of a kind used for the conveyance or packing of goods in heading 7010 are:

1. [The container] [g]enerally [has] a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap, [is] made of ordinary glass (colourless or coloured) and [is] manufactured by machines which automatically feed molten glass into moulds where the finished articles are formed by the action of compressed air;

2. The ultimate purchaser's primary expectation is to discard/recycle the container after the conveyed or packed goods are used;

3. [The container is] [s]old from the importer to a wholesaler/distributor who then packs the container with goods;

4. [The container is] [s]old in an environment of sale that features the goods packed in the container and not the jar itself;

5. [The container is] [u]sed to commercially convey foodstuffs, beverages, oils, meat extracts, etc.;

6. [The container is] [c]apable of being used in the hot packing process; and

7. [The container is] [r]ecognized in the trade as used primarily to pack and convey goods to a consumer who then discards the container after this initial use.

Applicability of the foregoing criteria to the merchandise is as follows. All of the articles appear to be manufactured by automatic machines from ordinary glass. Item B4300 is similar in shape to an ordinary wine bottle. It has a small opening, moderate length neck, and is configured to hold a cork or similar closure. An ultimate purchaser's primary expectation would be to discard or recycle the article after the conveyed or packed goods are used (note that although the article is configured for a cork lid which allows for repetitive, extremely easy, opening and closing, its physical shape is not at all out of the ordinary (i.e., it is shaped like an ordinary wine bottle)). The protestant states that the container is sold from the importer to a customer who fills it, as its physical shape indicates (see above), the item is of this kind (we emphasize, as stated above (citing Italglass, supra), that the competing tariff provisions are principal use provisions, not actual use provisions). There is no evidence as to whether the container is emphasized over the goods packed in it, but the physical form of the article (see above) indicates that this is not so. The criterion of commercial use to convey foodstuffs, etc., is addressed by the other criteria (see above and below). There is no evidence that the container is capable of being used in the hot packing process. The physical form of the article (see above) indicates that it is used to pack and convey goods to a consumer who discards it after its initial use. On the basis of these criteria, we conclude that this article is principally used for the conveyance or packing of goods. The article is properly classifiable under heading 7010 and, therefore, may not be classified under heading 7013 (see above, citing Myers, supra). Items B4300 is classifiable as a container of glass of a kind used for the conveyance or packing of goods in subheading 7010.92.50, HTSUS.

Items B0378 and B0822 are large containers (2,000 milliliters) with unusual shapes, not at all like conventional jars. Neither is configured to "hold" a lid or cap, other than a cork or similar closure (additionally, item B0822 has a spigot). Item B0378 is tall and has no neck, a very large opening, and a rim. Item B0822 has a small neck, moderate sized opening, and a rim. An ultimate purchaser's primary expectation would not be to discard or recycle the articles after the conveyed or packed goods, if any, are used, as evidenced by the shapes of the articles (item B0378 in the shape of a "spaghetti" jar; item B0822 similar to a beer keg), the fact that the openings are configured only for a cork or similar lid, and such lids allow for repetitive, extremely easy, opening and closing, a feature indicating reusability, and the spigot in item B0822 that also allows for repetitive and convenient reuse. The protestant states that the containers are sold from the importer to a customer who fills them (as emphasized above, the competing tariff provisions are principal use provisions, not actual use provisions). There is no evidence as to whether the containers are emphasized over the goods packed in them, but the physical form of the articles (see above) indicates that this is so. The criterion of commercial use to convey foodstuffs, etc., is addressed by the other criteria (see above and below). There is no evidence that the containers are capable of being used in the hot packing process. The physical form of the articles (see above) indicates that rather than using the containers to pack and convey goods to a consumer who discards them after their initial use, the containers, and not their contents, are emphasized to customers. On the basis of these criteria, we conclude that these articles are not principally used for the conveyance or packing of goods. Classification under heading 7010 is precluded.

Items B5348, 00574, and 02273 are similar in shape to cruets, vases, or pitchers and item 05553 is a globular shaped bottle with a base. Items B5348 and 05553 have small openings and items 00574 and 02273 have moderate sized openings, item 00574 has a long neck, items B5348 and 02273 have moderate length necks, and item 05553 has a short neck. Each item has a rim, but none is configured to "hold" a lid or cap, other than a cork or similar closure. An ultimate purchaser's primary expectation would not be to discard or recycle the articles after the conveyed or packed goods, if any, are used, as evidenced by the fact that the items are configured only for a cork or similar lid, and such lids allow for repetitive, extremely easy, opening and closing, a feature indicating reusability, and that each items is in the shape of a reusable storage article (B5348 like a cruet or vase, 00574 like a pitcher or cruet with a handle, 02273 like a pitcher with a handle, and item 05553 with an unusual decorative shape and appearing to have decorative embossing). The protestant states that the containers are sold from the importer to a customer who fills them, (as emphasized above, the competing tariff provisions are principal use provisions, not actual use provisions). There is no evidence as to whether the containers are emphasized over the goods packed in them, but the physical form of the articles (see above) indicates that this is so. The criterion of commercial use to convey foodstuffs, etc., is addressed by the other criteria (see above and below). There is no evidence that the containers are capable of being used in the hot packing process. The physical form of the articles (see above) indicates that rather than using the containers to pack and convey goods to a consumer who discards them after their initial use, the containers, and not their contents, are emphasized to customers. On the basis of these criteria, we conclude that these articles are not principally used for the conveyance or packing of goods. Classification under heading 7010 is precluded.

Items B5936, 00988, and 00990 are jars with geometrical shapes (3-sided, or 4-sided obelisk shape). They have very short or no necks and the first has a small opening while the latter two have large openings. Each has a rim and is not configured to "hold" a lid or cap, other than a cork or similar closure. An ultimate purchaser's primary expectation would not be to discard or recycle the articles after the conveyed or packed goods, if any, are used, as evidenced by the fact that each item is configured only for a cork or similar lid, and such lids allow for repetitive, extremely easy, opening and closing, a feature indicating reusability, as well as the unusual geometrical shapes of the items. The protestant states that the containers are sold from the importer to a customer who fills them (as emphasized above, the competing tariff provisions are principal use provisions, not actual use provisions). There is no evidence as to whether the containers are emphasized over the goods packed in them, but the physical form of the articles (special geometrical shapes) indicates that this is so. The criterion of commercial use to convey foodstuffs, etc., is addressed by the other criteria (see above and below). There is no evidence that the containers are capable of being used in the hot packing process. The physical form of the articles (see above) indicates that rather than using the containers to pack and convey goods to a consumer who discards them after their initial use, the containers, and not their contents, are emphasized to customers. On the basis of these criteria, we conclude that these articles are not principally used for the conveyance or packing of goods. Classification under heading 7010 is precluded.

All of the foregoing articles are classified under heading 7013. The protestant provides no evidence regarding the principal use of the items, but many of the criteria used in the analysis of the applicability of heading 7010 support principal use as household storage articles (see above, e.g., lids (and in one case, a spigot) allow for repetitive, extremely easy, opening and closing; when sold filled, the physical form shows that the container, not the contents, is emphasized; see also the criteria stated in T.D. 96-7 for glassware of a kind used for table or kitchen purposes (glass storage articles), and EN 70.13, which specifically enumerates as exemplars of table or kitchen glassware under this heading, "decanters", "pitchers", "jugs", and "oil or vinegar cruets"). Accordingly, items B0378, B0822, B5348, B5936, 00574, 00988, 00990, 02273, and 05553 are principally used to store food material and are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics, in subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS, depending on value. HOLDINGS:

(1) The protest was untimely as to the February 23, 1996 entry (19 U.S.C. 1514(c)(3)(A); 19 CR 174.12(e)).

(2) Item B4300 is classifiable as a container of glass of a kind used for the conveyance or packing of goods in subheading 7010.92.50, HTSUS.

(3) Items B0378, B0822, B5348, B5936, 00574, 00988, 00990, 02273, and 05553 are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes, in subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS, depending on value. The protest is GRANTED IN PART (as to item B4300) and DENIED IN PART (as to all other items, and also as to the February 23, 1996, entry, due to untimely filing). 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

Enclosure