CLA-2 RR:CR:GC 961353 PH

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

RE: Protest 2809-97-101295; glassware; conveyance or packing of goods; glassware for table, kitchen, toilet, office, indoor decoration; household storage articles; principal use; 7010; 7013; U.S. Additional Note 1(a); T.D. 96-7; Group Italglass U.S.A., Inc. v. United States; Kraft, Inc, v. United States; G. Heileman Brewing Co. v. United States; United States v. Carborundum Company

Dear Port Director:

This is in response to protest 2809-97-101295, 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 examination.

FACTS:

Three entries, dated March 4, 14, and 23, 1997, are included in the protest against the classification of "all imported glassware classified under subheading 7013.39.20 or 7013.39.60", HTSUS. Glassware so classified in the March 4, 1997, entry is described in the invoice as "05718P BOTT. TOLEDO 100 BP MB" and "06139P BOTT FRANTOIO MARASCA 500 F VA". That in the March 14, 1997, entry is described in the invoice as "06686S VASO ESAGONO LT 9 CTS MB" (classified in subheading 7013.39.60, HTSUS), "06139P BOTT FRANTOIO MARASCA 500 F VA", "06508P BOTT. RAFFAELLO 500 F", "05718P BOTT. TOLEDO 100 BP MB", "06202P BOTT. ORA 500 BP", and "05153P BOTT. TRIANGOLARE 500 F". That in the March 23, 1997, entry is described in the invoice as "05325P BOTT. VECCHIA ERA 250 F 14" and "01017S BOTT. PICNIC 1000 S MB". Unless otherwise indicated, these articles were classified in subheading 7013.39.20, HTSUS. The foregoing articles are described in the following table.

Code/Ref. Denomination Description

01017S Bott. Picnic 1000 S MB Short, wide bottle with four sides, each side merges into round neck, moderately long neck, wide rim, green tint.

05153P Bott. Triangolare 500 F Three sides, with the sides diminishing in width upwards, creating a triangular shape, base forms a triangle with rounded edges, tall, moderately long neck, rim.

05325P Bott. Vecchia Era 250 F 14 Four sides (or possibly cylindrical; illustration unclear), increasing slightly in width or diameter upwards, square shoulders, moderately tall, moderate neck, rim.

05718P Bott. Toledo 100 BP MB Four sides, with the sides diminishing in width upwards, base forms a square with rounded edges, moderate neck, wide rim, green tint.

06139P Bott. Frantoio Marasca 500 F VA Four sides, moderately tall, moderately long neck, rim, dark blue in color.

06202P Bott. Ora 500 BP Round discus shaped body with a base (rounded outward from the meeting point with the body) almost as wide as the diameter of the body, short neck, rim.

06508P Bott. Raffaello 500 F Cylindrical shape, with a slight concave effect (appears to be slightly narrower at the mid point than at the top and bottom of the cylindrical portion; illustration unclear), square shoulders, tall, long neck, rim.

06686S Vaso Esagono LT 9 CTS MB Hexagonal shape, square shoulders, very short neck, large opening, fitted with faucet near the base, rim, photographed with cork top, green tint.

The entries were liquidated on July 7 and 18, 1997. On October 2, 1997, counsel for the importer filed this protest. Citing Harmonized Commodity Description And Coding System Explanatory Note (EN) 70.10 and Treasury Decision (T.D.) 96-7, the protestant contends that the glassware is properly classified in subheading 7010.91, HTSUS, as bottles, and other containers of glass of a kind used for the conveyance or packing of goods. The protestant states that "[t]he glassware is of a type that would typically be discarded after its initial use, which is the expectation of [the protestant] and the third parties who fill the glassware with beverages, oils or foodstuffs for sale to consumers."

The HTSUS headings 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)"), 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)"), 7010.93.50 ("... [o]ther, of a capacity: ... [e]xceeding 0.15 liter but not exceeding 0.33 liter: ... [o]ther containers (with or without their closures)"), or 7010.94.50 ("... [o]ther, of a capacity: ... [n]ot exceeding 0.15 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 1997 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 27.8% ad valorem. The 1997 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:

Whether the glassware is classifiable as containers of a kind used for the conveyance or packing of goods under heading 7010, HTSUS, or glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under heading 7013, HTSUS.

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)).

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. 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 in heading 7010, HTSUS, for containers "of a kind used" for the conveyance or packing of goods and the provision in heading 7013, HTSUS, for glassware "of a kind used" for table or kitchen purposes are "principal use" provisions (Group Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993)). 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)).

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. Heileman 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, HTSUS, 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.

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, HTSUS, or the class "glassware of a kind used for table or kitchen purposes; glass storage articles" in heading 7013, HTSUS.

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, HTSUS, are:

1. [The container] generally [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. [T]he ultimate purchaser's primary expectation is to discard/recycle the container after the conveyed or packed goods are used;

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

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

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

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

7. [The container is] recognized 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. Except for item 06686S (addressed separately below), each article has a relatively small opening and is not configured to "hold" a lid or cap, other than having a rim with which a cork or similar closure may be used (in the cases of items 01017S and 05718P, the rims are wide). Except for item 06202P, each item has a long or moderately long neck.

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 closure, and such closures allow for repetitive, extremely easy, opening and closing, a feature indicating reusability. This is also evidenced by the decorative, long or moderately long necks of most of the items, the wide rims of two items, and the special shape of items 01017S, 05153P, 05718P, 06139P, and 06202P (the other two items may also have relatively unusual shapes; the illustrations are not clear enough to determine whether this is so).

The protestant states that the containers are sold from the importer to a customer who fills them, but there is no evidence as to whether this is so for the class or kind involved (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 containers are emphasized over the goods packed in them, but the physical form of the articles (special or relatively unusual shape, configuration for a cork or similar closure allowing for repetitive, easy opening and closing) 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, HTSUS, is precluded.

In the case of item 06686S, in addition to the foregoing, although the top opening is large (with a rim for a cork closure), the faucet at the base of the article indicates that an ultimate purchaser's primary expectation would be to use the article for storage instead of discarding or recycling it. Similarly, the special shape (hexagonal) and the convenience of a cork top closure and faucet indicates that the container is emphasized over the articles packed in it, if any. On the basis of these criteria, we conclude that item 06686S is also not principally used for the conveyance or packing of goods and classification under heading 7010, HTSUS, is precluded.

All of the foregoing articles are classified under heading 7013, HTSUS. 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, HTSUS, support principal use as household storage articles (see above, e.g., closures allow for repetitive, extremely easy, opening and closing (in the case of item 06686S, the faucet indicates the same); 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). Accordingly, items 01017S, 05153P, 05325P, 05718P, 06139P, 06202P, 06508P, and 06686S 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 or 7013.39.60, HTSUS, depending on value.

HOLDING:

The glassware (items 01017S, 05153P, 05325P, 05718P, 06139P, 06202P, 06508P, and 06686S) is classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes, in subheading 7013.39.20 or 7013.39.60, 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