CLA-2 RR:TC:MM 957304 MMC
Port Director
U.S. Customs Service
PO Box 619050
DFW Airport, TX 75261
RE: Protests 5501-94-100242, 100306; glass jars; T.D. 96-7;
HRL 545744
Dear Port Director:
The following is our response to Protests 5501-94-100242 and
5501-94-100306 concerning your actions in classifying and
assessing duty on various glass jars, under the Harmonized Tariff
Schedule of the United States (HTSUS). Samples of the subject
articles were submitted for our review.
FACTS:
It is Customs understanding, based on the merchandise
displayed in protestant's retail outlets, that the glass jars are
displayed and sold empty in a section known as "storage jars".
They are described as follows:
Styles 6503Y, 6501S, 6501m, and 6501
These are multi-sided bail and trigger closure jars. A series
of vertical lines are molded in the jars, giving the impression
that they are "paneled". They are made of clear glass and have
mold seams and knurling. They range in size from « liter to 2
liters and all have a width of approximately 3 «" and graduate in
height according to their volume. Paper flyers are sealed inside
the 1.5 and 2 liter jars picture jelly beans and spaghetti. On
both flyers " Le Jar' for preserves and storage" is printed.
Styles 6519 and 6520
These resemble typical candy or cookie jars. They are made of
clear glass and have mold seams, knurling and a bail and trigger
closure. They are sphere shaped and have an octagonal shaped
pattern molded in the glass.
Style 6506B
This jar is made of clear glass and resembles a typical candy or
cookie jar. It is sphere shaped but has had its bottom and sides
flattened. It is made of clear glass and has mold seams,
knurling and a bail and trigger closure.
Style 710
This jar measures approximately 3" in width and 3 «" tall and is
square shaped. It is made of clear glass has mold seams,
knurling, and a fired lip finish. A matching glass lid has a
molded knob that serves as a handle to open and close the jar.
In addition, a rubber gasket surrounds the outside bottom lip of
the lid. When the lid is placed into the jar, it fits into the
neck and body, creating a seal with the gasket.
Style 2027
This is a 13. 5oz. green glass bottle with a square shaped body
and long narrow neck. Its lip is thick and wide. Its round
opening appears to be shaped to accommodate a cork closure. It
does not have mold seams or knurling. The word PEAR is molded
into the bottom of the bottle.
Style 2028
This is also a green glass bottle with a square shaped body and a
short narrow neck. Its lip is round but has had extra glass
added to create an almond shaped spout for pouring. The round
portion of the opening appears to be shaped to accommodate a cork
closure. It has some knurling but no apparent mold seams. The
word PEAR is molded into the bottom of the bottle.
While styles 6605, 6604, 2096, and 701 were listed in
protestant's submission, no sample or description was provided.
Protestant entered the bail and trigger jars subject to
protest number 5501-94-100306 under subheading 7010.90.50, HTSUS.
The entries were liquidated on July 1 and 8, 1994, under
subheading 7013.39.20, HTSUS. A protest was timely filed on
September 29, 1994. The entry subject to protest 5501-94-100242
was entered under subheading 7010.90.50, HTSUS. It was
liquidated on May 6, 1994, under subheading 7013.39.20, HTSUS.
A protest was timely filed on August 4, 1994. The subheadings
under consideration are as follows:
7010.90.50 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 containers (with or
without their closures )
.........................................................Free
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:Valued not over
$3
each..............................................28.5%
ISSUE:
Are the jars classifiable as glass containers of a kind
used for the conveyance or packing of goods, or as glassware of a
kind used for table, kitchen, toilet, office, indoor decoration
or similar purposes?
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 pertinent 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.
Protestant suggests that subheading 7010.90.50, HTSUS, which
provides, in pertinent part, for containers of a kind used for
the conveyance or packing of goods, describes the various glass
jars, not subheading 7013.39.20, HTSUS, which provides, in
pertinent part, for the class or kind "glass household articles".
We disagree.
Both subheadings 7010.90.50 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. U.S., 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 7010.90.50 and 7013.39.20, HTSUS, contain the
language "of a kind used for" the principal use of a particular
article will determine whether it belongs to one of the classes
or kinds described by heading 7010, or heading 7013.
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 U.S. 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. U.S., USITR, 16 CIT 483, (June
24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. U.S.,
USITR, 14 CIT 614 (Sept. 6, 1990); and U.S. v. Carborundum
Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert.
denied, 429 U.S. 979.
Because both subheadings 7010.90.50 and 7013.39.20, HTSUS,
are use provisions, Additional U.S. Rule of Interpretation 1(a),
HTSUS, applies. This necessitates the application of the Kraft
characteristics to the subject glassware. Application of the
characteristics will determine to which class or kind the article
belongs; indoor decoration or packing or conveying containers.
Customs is of the opinion that the physical characteristics of
the subject article, as well as the manner in which it is used,
prevents it from being described by subheading 7010.90.50, HTSUS.
As a general rule, a glass article's physical form will indicate
its 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 principal use
criteria. For a further explanation of the class or kind "glass
storage jars" See, T.D. 96-7, 61. Fed. Reg. 223,229 (January 3,
1996).
The physical characteristics, the fact that the subject
articles are sold empty in the retail market as well as the fact
that they are not used in the same manner as is defined for the
class, indicates that the subject glass jars do not belong to the
class "containers for the packing and conveying of goods" in
heading 7010, HTSUS.
The subject jars as well as others with the same physical
characteristics are advertised and sold empty by the importer at
its retail outlets to ultimate purchasers for reuse in the home.
Additionally, the jars with a bail and trigger closure and molded
handle on the lid have a "rubber seal" that fits into the neck
of the jar. This seal also allows for repetitive, extremely
easy, opening and closing of the jar, and is a feature which
clearly indicates reusability. The pouring spout on style 2028
clearly indicates reuse. In contrast, containers belonging to
the class "containers of kind used for the conveyance or packing
of goods" usually have a standard threaded or beaded finish.
Finally, the manner in which containers belonging to the
class "containers of a kind used for the conveyance and packing
of goods" are principally used, is to convey a product to the
consumer who uses the product in the container and then discards
the container. The glass jars at issue are not the kind of
container generally used to commercially convey products.
Additionally, the glass jars also serve display purposes in the
home. Therefore, the jars are described by subheading
7013.39.20, HTSUS.
The various glass jars are classifiable under subheading
7013.39.20, HTSUS, as 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: valued not over $3
each.
With respect to the value issue raised by the protests, the
entries covered by these protests are identical to an internal
advice request that your office forwarded to Customs headquarters
and which we responded to by issuing Headquarters Ruling Letter
545744 dated January 19, 1995, a copy of which is enclosed.
In HRL 545744, we reviewed the documents submitted with the
internal advice request and determined that the evidence was
insufficient to support the existence of a bona fide buying
agency relationship. We explained that documentation failed to
demonstrate that the importer exercised sufficient control over
the alleged agent. Among the several factors that we based our
determination on was that no invoices from the manufacturer to
the purported agent were submitted. Accordingly, we concluded
that based on the submitted information, the commissions paid to
the agent were part of the price actually payable and were
dutiable.
HOLDING:
The protest should be DENIED. The glass jars are
classifiable under subheading 7013.39.20, HTSUS, as 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:
valued not over $3 each with a column one duty rate of 28.5 %
ad valorem.
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 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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification and
Appeals Division
Enclosure