Protest 280998100508; glass jar

HQ 962378 April 8, 1999 CLA2 RR:CR:GC 962378 AML CATEGORY: Classification TARIFF NO.: 7013.39.20 Port Director U.S. Customs Service 33 New Montgomery Street, # 1501 San Francisco, CA 94105 RE: Protest 280998100508; glass jar Dear Port Director: This is in response to Protest 280998100508, which pertains to the tariff classification of glass jars under the Harmonized Tariff Schedule of the United States (HTSUS). Pictorial representations were submitted for our review. FACTS: The glass jar, style # 05856P, is an urn shaped, clear glass jar which measures approximately 12.5 inches in height and 24 inches in circumference at its widest point. The jar is constructed with semicircular, glass handles which appear to be seamlessly molded to the neck of the jar. The jars are imported at a cost of $1.80 each and then sold to a retailer which fills the jars with biscotti, an Italian cookie, and sells the cookie filled jars for $16.00. After the retailer fills the jar with cookies, the jar is fitted with a wooden lid with a rubber seal on the inside and is shrink wrapped. The articles were entered on June 27, 1997, and the entries were liquidated on May 8, 1998, with classification in subheading 7013.39.20, HTSUS, as glassware of a kind used for table or kitchen use. This protest was timely filed on August 5, 1998. ISSUE: Whether the glassware is classifiable in subheading 7010.91.50, HTSUS, as containers of glass of a kind used for the conveyance or packing of goods; or under subheading 7013.39.20, HTSUS, as 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 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 headings under consideration are as follows: 7010 Carboys, bottles, flasks, jars, pots, vials, am poules 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: 7010.91.50 Other containers (with or without their closures). * * * * * * * * * * * 7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): 7013.39 Other: 7013.39.20 Valued not over $3 each. 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. 8980, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).  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 v. United States, 969 F. Supp. 66, 75 [CIT 1997]). 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: [i]n 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 C.F.R. §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, physical form of a glass article 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 ENs for heading 7010 are helpful in this analysis. EN 70.10 states, in pertinent part: “[t]his 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. Id., at p. 320 and p. 305, respectively. Based on the above authorities Customs issued Treasury Decision (T.D.) 967 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. The criteria in T.D. 967 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 glass jar is as follows. The article appears to be manufactured by automatic machines from ordinary glass. It is similar in shape to an urn. It has a wide opening, moderate length neck, and is configured to hold a rubber lined, wooden lid. Because of the unusual and attractive shape, an ultimate purchaser’s primary expectation would be to reuse the article after the conveyed or packed goods are used (note also that the article is configured for a wooden lid which allows for repetitive, extremely easy, opening and closing). We note that although the protestant states that the container is sold from the importer to a customer who fills it with Italian cookies, packing cookies for sale in glassware is relatively rare; cookie jars are principally used as storage articles in the home. There is evidence that container is emphasized over the goods packed in it, i.e., molded glass handles and a unique, decorative shape, and the physical form of the article (see above) indicates that this is so. The cost of the cookie filled article ($16.00) supports the conclusion that the glass jar is the primary focus of the purchaser with the contents simply emphasizing a suggested use of the reusable jar. 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 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. The 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 that 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. 967 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, “pitchers”, “jugs”, and “sweetmeat boxes”). Accordingly, the glass jars 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 glassceramics, in subheading 7013.39.20, HTSUS. This determination is consistent with several prior rulings of this office: HQ 959637, dated December 4, 1997; HQ 959638, dated October 10, 1997; HQ 959639, dated October 21, 1997; HQ 959751, dated October 15, 1997; HQ 959941, dated October 27, 1997; HQ 959942, dated October 27, 1997; and HQ 960162, dated October 17, 1997; all of which applied the criteria delineated in T.D. 96-7, the eo nomine and use analyses applied herein, as well as ENs 70.10 and 70.13, and determined that, based on the decorative appearance and reusability of the glassware in question, such articles are classifiable in heading 7013 as glassware of a kind used for table, kitchen, indoor decoration or similar purposes. HOLDING: The glass jars are classifiable as glassware of a kind used for table (other than drinking glasses) or kitchen purposes, in subheading 7013.39.20, HTSUS. The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, John Durant, Director, Commercial Rulings Division Enclosure