CLA-2 RR:CR:GC 959637 PH

Port Director
U.S. Customs Service
C/O Chief, Residual Liquidation and Protest Branch
6 World Trade Center, Room 761
New York, NY 10048-0945

RE: Protest 1001-95-110328; various glass containers; conveyance or packing of goods; preserving jars of glass; glassware for table, kitchen, toilet, office, indoor decoration; household glass storage articles; wire bail and rubber ring closure system; principal use; eo nominee; 7010; 7013; EN 70.10; EN 70.13; U.S. Additional Note 1(a); T.D. 96-7; HQs 087359; 956526; 957873; Myers v. United States, 969 F. Supp. 66 (CIT 1997); 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)

Dear Port Director:

This is in response to Protest 1001-95-110328, which pertains to the tariff classification of certain articles of glass under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and product brochures were submitted for our review.

FACTS:

The merchandise consists of various pieces of glassware, as described in the following table (based on the invoices for the merchandise, a catalogue submitted by the protestant, and samples if provided). Entered value for the glassware ranges from $.23 to $2.29 per piece. Each piece appears to be of heavy glass. According to the protestant, the glassware is made on automatic forming machines of ordinary, recyclable glass, with many made of previously recycled glass. Mold seams appear on the sides of all of the glassware and identifying symbols and container capacities are molded into the bottoms of many. Each piece of glassware is imported empty, with a closure or stopper.

Code/Ref. Denomination (Cat. Page #) Description

333 [2] Bote Octogonal 106 cc (40) Octagonal shape, green tint, short neck, lip, wide opening, lid of cork (2nd model has lid of glass and cork (with knurl on top)), 115 ml. (Sample provided.)

333/2 [2] Bote Galaxy 106 cc (40) Four sides, green tint, short neck, lip, wide opening, lid of cork (2nd model has lid of glass and cork (with knurl on top)), 110 ml. (Sample provided.)

333/3 [2] Bote Delta 106 cc (40) Three sides, green tint, short neck, lip, wide opening, lid of cork (2nd model has lid of glass and cork (with knurl on top)), 110 ml.

394 Botella Anis (38) Cylindrical shape, diamond pattern embossing, green tint, neck of moderate length, rim, lid of cork, 45 ml.

394/1 Gaseosa Anis ("Miniatura Anis Gaseosa" in catalogue) (36) Cylindrical shape, diamond pattern embossing, green tint, neck of moderate length, wire bail and rubber ring closure system, 50 ml.

444 Botella Picasso (38) Four sides (rounded edges), facing triangle pattern embossing, green tint, rim, neck of moderate length, lid of cork, 45 ml.

578 Bote Trabuco Peq. (40) Cylindrical shape, green tint, short neck, lip, wide opening, lid of cork, 45 ml.

581 [2] Licorera Romos (41) Short broad-based (bell-shaped), untinted, short neck, lip, lid of cork (2nd model has lid of glass and plastic (with globe-shaped top)), 250 ml. (Sample of model with lid of glass and plastic provided.)

582 [2] Licorera Pala Alta (41) Short wide (flask-shaped), untinted, neck of moderate length, lip, lid of cork (2nd model has lid of glass and plastic (with globe-shaped top)), 200 ml.

583 [2] Licorera Cuadrada (41) Four sides, untinted, short neck, lip, lid of cork (2nd model has lid of glass and plastic (with globe-shaped top)), 265 ml. (Sample provided, broken when received in this office.)

584/1 Licorera Reloq Peq. ("Botella Reloq Pequena" in catalogue) (44) Two sides (rounded circular shape), green tint (sample is untinted), short neck, lip, lid of cork, 125 ml. (Sample (with different lid) provided.)

586/1 Botella Pala Baja Peq. (44) Two wide sides (with other sides narrow, rounded edges), green tint (sample is untinted), short neck, lip, lid of cork, 125 ml. (Sample provided.)

657 Bote Trabuco Grde. (39) Cylindrical shape, green tint, short neck, lip, wide opening, lid of cork, 130 ml.

702 Bote Cilindrico ("Bote Redondo S/Mini" in catalogue) (40) Cylindrical shape, green tint, short neck, lip, wide opening, lid of cork, 25 ml.

702/2 Bote Octogonal S/Mini (40) Octagonal shape, green tint, short neck, lip, wide opening, lid of cork, 30 ml.

730 Bote Hexagonal (39) Hexagonal shape (bottom, top, and four sides form hexagon, front and back are flat), green tint, short neck, lip, wide opening, lid of cork, 55 ml. (Sample provided, broken when received in this office.)

730/2 Bote Gal (39) Ink bottle-like shape, green tint, short neck, lip, wide opening, lid of cork, 55 ml.

764 Bote Ollita (39) Vase shape, 2 small ear-like handles, green tint, short neck, lip, wide opening, lid of cork, 35 ml.

775 Vinagera Venecia (42) Cruet shape, 1 handle, green tint, neck of moderate length, pouring lip (with channel), lid of glass and cork stopper, 225 ml.

784 Botella Fragola 106 cc (33) Four sides, tall, green tint, neck of moderate length, lip, lid of cork, 120 ml.

784/2 Botella Piramide (33) Four sides, with sides diminishing in width upwards, tall, green tint, neck of moderate length, lip, lid of cork, 120 ml.

785 [2] Botella Lagrima (32, 33) Tear-shape (rounded broad base, gradually narrowing to neck), tall, green tint, neck of moderate length, lip, lid of cork (2nd model has lid of glass and cork (with rounded handle tapered upwards)), 120 ml.

785/1 [2] Botella Bolas (32, 33) Conical shape (diminishing in width upwards, with sides narrowing and widening to form 8 balloon-like shapes), tall, green tint, neck of moderate length, lip, lid of cork (2nd model has lid of glass and cork (with rounded handle tapered upwards)), 120 ml.

785/2 [2] Botella Conica (32, 33) Conical shape (diminishing in width upwards), tall, green tint, neck of moderate length, lip, lid of cork (2nd model has lid of glass and cork (with rounded handle tapered upwards)), 120 ml.

788 [2] Bote Corazon (34) Heart shaped (with flat base), untinted, short neck, lip, lid of cork (2nd model has lid of glass and cork (with knurl on top)), 225 ml. (Sample provided, broken when received in this office.)

789 [2] Botella Piramide (33) Four sides (with sides diminishing in width upwards), tall, green tint, short neck, lip, lid of cork (2nd model has lid of glass and cork (with globe shaped handle)), 200 ml.

789/1 Botella Piramide Vorcida ("... Retorcida" in catalogue) (33) Four sides (with sides diminishing in width upwards and twisting 1/4 turn), tall, green tint, short neck, lip, lid of glass and cork (with rounded handle tapered upwards), 200 ml.

1007 Figura Cerdito Hucha (43) Pig shape, green tint, oblong opening (similar to a "piggy" bank opening) on top, 500 ml.

2000 Jarra Uvas Griega ("... Grande" in catalogue) (18) Pitcher shape (wide base, narrowing then widening (grape-like pattern embossing in wide part) before narrowing to neck), tall, green tint, handle, long neck, pouring lip (with channel), lid of cork, 750 ml.

2002 Botella Naranjas (17) Globe shape tapering to neck (light embossing), tall, green tint, long neck, rim, lid of cork, 750 ml.

2017 Botella Giralda Sevilla (27) Four sides (embossing to represent a building on the sides), tall, green tint, neck of moderate length (with neck also of 4 sides), rim, lid of cork), 800 ml.

2018 [2] Botella Torre Eiffel (28, 29) Four sides (with sides diminishing in width upwards) in shape of, and with embossing to represent, the Eifel Tower, tall, green tint, long neck, rim, lid of cork (2nd model has lid of glass and plastic (with globe shaped handle)), 800 ml.

2021 Botella Serpiente (28) Conical in shape of, and with raised work representing, a serpent, tall, green tint, long neck (with neck tapering from serpent shape to cylindrical shape), rim, lid of cork, 750 ml. (Sample provided.)

2030 Botella Tres Bolas (17) Conical shape with sides narrowing and widening to form 3 balloon-like shapes tapering to neck, tall, green tint, neck of moderate length, rim, lid of cork, 750 ml.

2050 Botella Nervio (1) Conical shape with faint embossing tapering to neck, very tall, green tint, long neck, rim, lid of cork, 500 ml.

2093 [2] Botella Moscatel Oro (17) Cylindrical shape, then gradual tapering to neck with embossing appearing to represent grapes, green tint, long neck, rim, lid of cork (2nd model has a wire bail and rubber ring closure system), 750 ml.

2109 Botella Cuello Desplazado (27) Four sides with neck rising from side instead of center, tall, green tint, long neck, rim, lid of cork, 750 ml.

3025 Vinagera Sandra (42) Global shape with one handle, green tint, neck of moderate length, pouring lip (with channel), lid of cork, 450 ml. (Sample provided, handle broken when received in this office.)

Two entries dated April 17 and 22, 1995, are included in the protest. The entries were liquidated on September 8, 1995, with classification under subheading 7013.39.20, HTSUS.

On December 7, 1995, the importer filed the protest. According to the protest, the protestant does not process or fill the pieces of glassware; the protestant resells them to commercial processors which use the glassware as containers and fill them with one of several products, including dried food, bath oils or salts, body creams, etc. After the processors fill the pieces of glassware, the processors sell the products to retailers or mail-order catalogue houses, which sell the products to consumers.

The protestant provides sales literature from three of the protestant's commercial purchasers of the glassware, stated to represent 78% of the protestant's sales. The literature of the first purchaser depicts several of the listed pieces of glassware (items 2021, described as "SERPENT JAR ... tall (over 1 foot high) coiled Italian glass storage jar with cork stopper is filled with almost 1.5 pounds of ten-bean soup ...", and 2030, described as "THREE BULB ROCK SUGAR CRYSTALS BOTTLE ... over 11" high hand-blown, Spanish bottle [with] almost 1.5 lbs. of pure rock candy crystals[,] [b]eautiful, decorative and useful"). Although these items and other similar "speciality" glass bottles emphasize the nature of the glass bottle, items in the catalogue packed in conventional bottles do not (e.g., "CAJUN SOUP MIX [p]acked inside this 750 ml bottle is a 1.5 pound assortment of beans ..."). The literature of the second purchaser concerns glassware not covered in the protest. The literature of the third purchaser shows two items (784 and 785 (cork lids), each filled with massage oil and herbs and decorated with ribbons). The literature of this purchaser also offers additional, unfilled bottles, including items 775, 784, 784/2, 785, 785/1, and 785/2.

On the basis of this evidence, the protestant argues that the containers are "of a kind" used to package or convey products, including food and toilet preparations, and that they are clearly not glassware used for table, kitchen toilet, office, indoor decoration or similar purposes. The protestant cites Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993), for the proposition that the competing tariff provisions are "use" provisions subject to Additional Note 1(a), HTSUS. The protestant notes the Harmonized Commodity Description And Coding System Explanatory Notes (ENs) for headings 7010 and 7013, two rulings, HQ 957873 dated November 21, 1995, and HQ 956526 dated July 26, 1994, and T.D. 96-7 in support of its arguments. The protestant also cites 19 U.S.C. 1504(a) in arguing that those entries which were liquidated more than one year after entry for which no notices of extension were issued must be deemed liquidated as asserted at the time of entry by the importer of record.

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.

The 1995 general column one rate of duty for goods classifiable under subheading 7010.90.20 ( ... containers (with or without their closures) of a kind used for the conveyance or packing of perfume or other toilet preparations; ...: [p]roduced by automatic machine) is 3.5% ad valorem. Goods classifiable under subheading 7010.90.50 ( ... [o]ther: ... [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 1995 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 29.2% ad valorem. The 1995 general column one rate of duty for goods classifiable under subheading 7013.99.40 (... [o]ther glassware: ... [o]ther: ... [o]ther: ... [o]ther: [v]alued not over $0.30 each) is 38% ad valorem. The 1995 general column one rate of duty for goods classifiable under subheading 7013.99.50 (... [o]ther glassware: ... [o]ther: ... [o]ther: ... [o]ther: ... [v]alued over $0.30 each but not over $3 each) is 30% ad valorem.

ISSUE:

Are the pieces of glassware described in the FACTS 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 the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)). As for the protestant's argument that entries which were liquidated more than one year after entry for which no notices of extension were issued must be "deemed" liquidated as asserted under 19 U.S.C. 1504(a), that argument is inapplicable to the protested entries (because liquidation of the two protested entries was within 1 year of the date of entry).

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 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, 969 F. Supp. 66 (CIT 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).

Except in regard to items 394/1 and the model of item 2093 with a wire bail and rubber ring closure system (addressed below), the 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. According to the "EFFECTIVE DATE" section of T.D. 96-7, "[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 protested entries were prior to February 2, 1996. However, insofar as the criteria described in T.D. 96-7 for indicating whether glassware qualifies as part of the class of containers used for the conveyance or packing of goods or for table or kitchen purposes as glass storage articles are concerned, those criteria were compiled from Court decisions, ENs, and rulings in existence prior to the effective date of the T.D. (e.g., the criteria in the T.D. for glassware of a kind used for table or kitchen purposes; glass storage articles, were used in HQs 953952, dated September 21, 1994, and 956470, dated September 28, 1994). Therefore, the criteria in T.D. 96-7 are relevant for determining the classification of the glassware under consideration.

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 (except item 394/1 and the model of item 2093 with a wire bail and rubber ring closure system, addressed separately below) is as follows. The first criterion is inconclusive; some, but not all, items have large openings and/or short or no necks, most have lips or flanges (but they are merely raised and are not configured to "hold" a lid or cap, other than a cork or similar closure), all are made of ordinary glass and are stated to be manufactured by automatic machines. An ultimate purchaser's primary expectation would not be to discard or recycle the container after the conveyed or packed goods are used, as evidenced by the fact that the protestant's evidence shows many of the containers offered for sale empty; further, the lids allow for repetitive, extremely easy, opening and closing, a feature indicating reusability. The protestant states that the containers are sold from the importer to a wholesaler/distributor who then packs the container with goods, but the evidence provided by the protestant demonstrates the sale of the containers empty; further, many of the containers are of a kind sold to the ultimate purchaser empty (in this regard we note that, as emphasized above, the competing tariff provisions are principal use provisions, not actual use provisions). The evidence provided by the protestant shows that the container is emphasized over the goods packed in the container. 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 evidence available is that rather than using the container to pack and convey goods to a consumer who discards the container after its initial use, the containers are offered for sale empty, the ease of opening and closing the containers makes them very reusable, and the containers, and not their contents, are emphasized to customers. On the basis of these criteria, we conclude that each of items described in the FACTS, except for item 394/1 and the model of item 2093 with a wire bail and rubber ring closure system, is not principally used for the conveyance or packing of goods. Classification under heading 7010 is precluded.

Items 394/1 and the model of item 2093 with a wire bail and rubber ring closure system are classifiable in accordance with Myers v. United States, supra. That case dealt with the "preserving jars of glass" provision in heading 7010, as applied to certain jars with wire bail and rubber ring closure systems. Finding the tariff term "preserving jars of glass" in heading 7010, HTSUS, to be an eo nomine provision, the Court held that the jars (with wire bail and rubber ring closure systems) were classified under that heading. 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.

We have ruled that jars such as those under consideration are classified under subheading 7013.39.20, HTSUS (see HQs 953282, 088020, 951721, 956470, 953952 and T.D. 96-7). However, based on Myers and the criteria therein, we conclude that items 394/1 and the model of item 2093 with a wire bail and rubber ring closure system are described in the eo nomine provision "preserving jars of glass" in heading 7010, HTSUS. Accordingly, we must follow Myers in this protest. Items 394/1 and the model of item 2093 with a wire bail and rubber ring closure system are classified under subheading 7010.90.50, HTSUS. The other containers in this case do not meet the criteria in Myers and are not "preserving jars of glass."

The remaining items are classified under heading 7013. Items 333, 333/2, 333/3, 581, 582, 586/1, 657, 784, 784/2, 785, 785/1, 785/2, 789, and 789/1 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, other, other, valued not over $3 each, in subheading 7013.39.20, HTSUS.

Items 775 and 3025 are cruets, item 2000 is a pitcher, and items 2002, 2017, 2018, 2021, 2030, 2050, 2093 (the model with a cork lid), and 2109 are large decorative bottles. Items 775, 3025, and 2000 are clearly principally used to store food material (see EN 70.13, which incudes "pitchers" and "oil or vinegar cruets" among the exemplars listed as being covered by heading 7013 under table or kitchen glassware). Items 2002, 2017, 2018, 2021, 2030, 2050, 2093 (the model with a cork lid), and 2109 are of a kind principally used for table or kitchen purposes (see EN 70.13, which includes "decanters" ("decanter" is defined as "a decorative glass bottle, generally with a stopper, from which wine, etc. is served after being decanted" (Webster's New World Dictionary (3rd Coll. Ed.) (1988), p. 356)) and "jugs" among the exemplars listed as being covered by heading 7013 under table or kitchen glassware). They 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.

Items 394, 444, 578, 702, 702/2, 730, 730/2, and 764 are very small decorative bottles, items 583 and 584/1 are small decorative bottles, and items 788 and 1007 are bottles shaped to represent a pig or a heart. Each of items 394, 444, 578, 583, 584/1, 702, and 702/2 could conceivably be used to store food material or for toilet decoration or similar purposes (see EN 70.13, which includes "perfume bottles" among the exemplars covered by heading 7013 under toilet articles). In our opinion, these items are principally used for the latter; however, for the reason stated in the parenthetical sentence at the end of this paragraph, definitive classification under subheading 7013.39 or 7013.99 is not necessary for decision of this protest). We conclude that items 730, 730/2, and 764 are of a kind principally used for office decoration or similar purposes (see EN 70.13, which includes "paperweights", "inkwells", and "containers for pins" among the exemplars covered by heading 7013 under office glassware). We conclude that items 788 and 1007 are of a kind principally used for indoor decoration or similar purposes (see EN 70.13, which includes "fancy articles (animals, flowers, foliage, fruit, etc.)" among the exemplars covered by heading 7013 under glassware for indoor decoration). These items are classifiable as other glassware, other, other, other, in subheading 7013.99.40 or 7013.99.50, HTSUS, depending on value. (Because these items were liquidated with classification in subheading 7013.39.20, HTSUS, with a rate of duty less than the rates of duty for subheading 7013.99.40 or 7013.99.50, this determination has no effect on the liquidated classification.)

The two rulings cited by the protestant are distinguished from this case. In the case of HQ 956526 dated July 26, 1994, as stated in the ruling, the evidence indicated that the containers are used to commercially convey food stuffs to a consumer and the lack of decoration or uncommon lid indicated that the jars were of a kind which would be discarded by the consumer when emptied. Furthermore, a review of the file for HQ 956526 shows that the jars were low-cost ($.055 to $.15 each) jars with twist-on and off covers designed for use in the hot pack process. Thus, the containers in HQ 956526 differ from the containers in this case in important aspects, aspects which are elements of 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 described above. In the case of HQ 957873 dated November 21, 1995, the jars were created from unique specifications created specifically for the importer's bath products and importer was the only importer of the jar. That is, as stated in HQ 957873, "the containers do not pass through any other channel of trade, nor are they sold in any other manner." Thus containers in HQ 957873 are, as stated in the ruling "principally used for the conveyance or packing of perfume or other toilet preparations[.]" HOLDING:

The pieces of glassware described in the FACTS (except for items 394/1 and the model of item 2093 with a wire bail and rubber ring closure system) are not containers of a kind used for the conveyance or packing of goods and are classifiable under heading 7013. Items 333, 333/2, 333/3, 581, 582, 586/1, 657, 775, 784, 784/2, 785, 785/1, 785/2, 789, 789/1, 2000, 2002, 2017, 2018, 2021, 2030, 2050, 2093 (the model with a cork lid), 2109, and 3025) are classifiable in subheading 7013.39.20, HTSUS. Items 394, 444, 578, 583, 584/1, 702, 702/2, 730, 730/2, 764, 788, and 1007 are classifiable in subheading 7013.99.40 or 7013.99.50, HTSUS (depending on value) (because these items were liquidated with classification in subheading 7013.39.20, HTSUS, with a rate of duty less than the rates of duty for subheading 7013.99.40 or 7013.99.50, this determination has no effect on the liquidated classification). Items 394/1 and the model of item 2093 with a wire bail and rubber ring closure are preserving jars of glass and are classifiable under heading 7010 in subheading 7010.90.50, HTSUS (Myers v. United States, 969 F. Supp. 66 (CIT 1997)).

The protest is GRANTED IN PART (as to items 394/1 and the model of item 2093 with a wire bail and rubber ring closure system) and DENIED IN PART (as to all other items). 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