Application for Further Review of Protest No. 2704-18-101165; classificationof glass water bottles with silicone sleeves and polypropylene caps with carrying loop

HQ H303656 March 27, 2020 OT:RR:CTF:CPM H303656 MAB CATEGORY: Classification TARIFF NO: 7013.49.20 Port Director U.S. Customs and Border Protection Port of Buffalo 726 Exchange Street, Suite 400 Buffalo, NY 14210 ATTN: Kevin Janiszeski, Import Specialist Industrial and Manufacturing Materials Center of Excellence and Expertise (CEE) Re: Application for Further Review of Protest No. 2704-18-101165; classification of glass water bottles with silicone sleeves and polypropylene caps with carrying loop Dear Port Director, This is in response to the Application for Further Review of Protest 2704-18- 101165. The Protest and AFR were filed on behalf of Tali Corp dba BKR (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of an entry of glass water bottles with silicone sleeves and polypropylene caps with a carrying loop in heading 7013 of the Harmonized Tariff Schedule of the United States (HTSUS). Protestant entered the protested merchandise on May 8, 2017, in heading 7010, HTSUS. The entry was liquidated on March 30, 2018, in heading 7013, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. Protestant’s position remains that the subject merchandise should be classified in heading 7010, HTSUS, as bottles of glass used for the conveyance or packing of goods. In a request for Internal Advice pertaining to the same merchandise dated June 20, 2018, Protestant, in the alternative, argues that if CBP determines the subject merchandise is not classifiable under heading 7010, HTSUS, it is more properly classifiable in heading 7020, HTSUS, as other articles of glass. We have also considered protestant’s arguments presented during a teleconference with our office dated January 23, 2020, in addition to two (2) written supplemental submissions dated February 7, 2020, and February 10, 2020. FACTS: At issue are glass water bottles. The glass bottles range in sizes from those measuring 7 inches tall and 8 inches in circumference to those measuring 9.5 inches tall and 14 inches in circumference. The bottles are made of ordinary glass of the type typically used to hold beverages. The opening of the container contains molded threads that grip a twist-on cap and when twisted on, forms a seal. At the time of importation, the glass bottles have silicone sleeves and polypropylene caps with a carrying loop. The silicone sleeves come in a variety of styles and colors and are designed to protect the glass from breakage during transportation and facilitate holding the bottle to preclude slippage.1 The bottles also include polypropylene caps2 to prevent water leakage and are designed with a ring or loop for transporting. Some caps are known as “cosmetic caps” and are used with a small compact filled with lip suntan lotion, lip gloss, balm, base creams, or other makeup that can slip in and out of the cap.3 ISSUE: Whether the instant glass water bottles with silicone sleeves and caps with carrying loop are classified in heading 7010, HTSUS, as bottles of glass used for the conveyance or packing of goods; in heading 7013, HTSUS, as glassware for table or kitchen purposes; or in heading 7020, HTSUS, as other articles of glass. LAW AND ANALYSIS: The matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii),(iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 2704-18-101165 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1 and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may be applied in order. 1 BKR has a patent for the sleeves. See Patent Registration No. D672,609. 2 BKR has a patent for the caps. See Patent Registration No. US D672,238 S. 3 BKR has a patent for the cosmetic caps. See Patent Registration No. 9,681,732 B2.  The 2017 HTSUS provisions under consideration in this case are as follows: 7010: 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 7010.90: Other: 7010.90.50: Other containers (with or without their closures) Of a capacity exceeding 0.473 liter but not exceeding 1 liter: 7010.90.5019: Other 7013: 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 of glass-ceramics: 7013.49: Other: Other: 7013.49.2000 Valued not over $3 each… 7020: Other articles of glass: 7020.00.60: Other… * * * * * In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the Harmonized System at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). EN 70.10 provides, in pertinent part, as follows: This heading covers all glass containers of the kinds commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). They include: … (B) Jars, pots and similar containers for the conveyance or packing of certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.), cosmetic or toilet preparations (face creams, hair lotions, etc.), pharmaceutical products (ointments, etc.), polishes, cleaning preparations, etc. These articles are usually made of ordinary glass (colourless or tinted) by pressure in a mould usually followed by blowing with compressed air. They generally have a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap. Some of these containers, however, may be closed by corks or screw stoppers. Like bottles, these articles may be sand-blasted, cut, etched or engraved, decorated, banded, etc. … The heading also includes preserving jars of glass. Closures of any material, presented with the containers for which are intended, remain classified in this heading. … The heading does not include: … (c) Decanters, drinking glasses and other glass containers being domestic glassware (heading 70.13), but not containers used primarily for the commercial conveyance or packing of goods. The relevant ENs for heading 70.13, provide in pertinent part: This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds: Table or kitchen glassware, e.g. drinking glasses, goblets, tankards, decanters, infants’ feeding bottles, pitchers, jugs, plates, salad bowls, sugar- bowls, sauce-boats, fruit-stands, cake-stands, hors d’oeurvres dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife- rests, mixers, table hand bells, coffee-pots and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee-mills, cheese dishes, lemon squeezers, ice- buckets. … These articles may be e.g., of ordinary glass, lead crystal, glass having a low coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware). They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles)…. … The heading also excludes: … (b) Bottles, flasks, jars, and pots of a kind commonly used for the commercial conveyance or packing of goods, and preserving jars (heading 70.10). The relevant ENs for heading 70.20, provide, in pertinent part: This heading covers glass articles (including glass parts of articles) not covered by other headings of this Chapter or of other Chapters of the Nomenclature. These articles remain here even if combined with materials other than glass, provided they retain the essential character of glass articles…. * * * * * The glass water bottles with silicone sleeves are composite goods, and hence, classified according to their essential character under GRI 3(b).4 Because the glass water bottle part provides the bulk and weight of the articles and performs the primary function of the articles which is to store and hold water, the essential character of the glass water bottles with silicone sleeves is imparted by the glass water bottle. Thus, the classification of the article is based on the classification of the glass water bottle. Furthermore, the instant glass water bottles can only be classified in heading 7020, HTSUS, if they are excluded from headings 7010 and 7013, HTSUS. Headings 7010 and 7013, HTSUS, are “principal use” provisions (Group Italglass, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993)), which are governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which provides that: In the absence of special language or context which otherwise requires--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. The Court in Group Italglass stressed “that it is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.” Group Italglass, 839 F. Supp. at 867.5 4 “mixtures, composite goods consisting of different materials or made up of difference components … shall be classified as if they consisted of the material or component which gives them their essential character….” 5 The Court further stated that “while heading 7010, HTSUS, is not an actual use provision, evidence of the actual use of the imported goods could, depending on the quantum of proof, have some minimal relevant probative value on the issue of principal use.” The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. These 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 United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976). See also Lennox Collections v. United States, 20 CIT 194, 196 (1996). Because the text of heading 7013, HTSUS, excludes goods of heading 7010, HTSUS, the first consideration is whether the merchandise at issue is classifiable in heading 7010, HTSUS. The Court of International Trade (CIT) provided more specific guidance with regard to heading 7010, HTSUS, in Automatic Plastic Molding v. United States, Slip. Op. 2002-120, (CIT Oct. 5, 2002) (hereafter APM). In APM, the CIT classified an amphora-shaped clear glass container measuring approximately 12.5 inches tall and 24 inches in circumference at its widest point, with two hook-shaped handles protruding from the neck, in heading 7010, HTSUS. The CIT emphasized several factors evidencing the proper classification of the jars therein as packing and conveyancing jars of heading 7010, HTSUS. The Court found the presence of lugs on the glass jars at issue therein to be convincing, indicating that the jars were designed for use in the hot packing process as well as unattractive and unsuitable for use as a long-term storage article. The environment of sale further supported classification in heading 7010, HTSUS; the containers were sold empty to a packing plant, not sold wholesale, and the difference in the wholesale and retail price of the jars was substantial. The Court further noted that the design of the jars aided in the marketing of the food product itself, attracting the attention of consumers and highlighting the attractive quality of the biscotti packaged therein. The CIT also provided guidance with regard to heading 7010, HTSUS, in Latitudes Int'l Fragrance, Inc. v. United States, 931 F. Supp. 2d 1247 (CIT 2013), in which the CIT reviewed CBP’s classification of empty glass “diffuser bottles” that, once imported, were filled with fragranced oil, fitted with stoppers and diffuser reeds, and packaged for sale as “diffuser kits” used for the dispersion of fragrances in enclosed spaces. Id. at 1250. The court determined that the principal use of the diffuser bottles was as vessels for the conveyance of fragranced oils of heading 7010, HTSUS, rather than as glassware for indoor decoration of subheading 7013.99.50, HTSUS. The court noted in particular that the diffuser bottles were specially designed to contain the fragranced oil, were sent to market only when filled with the oil, that the price of the bottles with their contents at retail was much higher than the cost of the bottles alone, and that while refill kits for the fragranced oil were available from third party vendors, the plaintiff did not sell any refills itself, and there was no evidence that diffuser bottles were sold empty at retail. Based on this determination, the court concluded that the bottles were properly classified in heading 7010, HTSUS. Id. at 1257. The U.S. Customs Service (now CBP) has also relied on Treasury Decision (T.D.) 96-7, issued January 3, 1996, which, among other things, adopted certain criteria as indicative, but not conclusive, of whether a particular glass article falls within the class of "containers of glass of a kind used for the conveyance or packing of goods" (heading 7010), or the class of "glassware of a kind used for table, kitchen or similar purposes" (heading 7013). 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 as follows: [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; The ultimate purchaser’s primary expectation is to discard/recycle the container after the conveyed or packed goods are used; [The container is sold] from the importer to a wholesaler/distributor who then packs the container with goods; [The container is sold] in an environment of sale that features the goods packed in the container and not the jar itself; [The container is used] to commercially convey foodstuffs, beverages, oils, meat extracts, etc.; [The container is capable] of being used in the hot packing process; and [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. Protestant argues that the subject items are of a kind of glass container used to pack and convey liquids and therefore should be classified in heading 7010, HTSUS, pursuant to GRI 1. Protestant describes how the instant glass water bottles, together with their silicone sleeves and polypropylene caps, are designed, made, used, marketed, and sold for use to convey liquids outside of the home for people “on the go,” and unlike a set of wine or water glasses, they are not intended to be used at home in the kitchen and dining room. Although the instant glass water bottles are similar in size and shape to disposable plastic water bottles, protestant asserts they are different because they are refillable, reusable, and can be cleaned, thus offering a more sanitary and environmentally friendly alternative. Petitioner describes how they are marketed as a beauty accessory (e.g., routinely featured in fashion magazines and sold through beauty stores and departments6 and not through grocery stores or household departments) for the conveyance of liquids and/or lip balm (or other makeup products) to be used throughout the day outside of the home for exercise (usually in a gym and for activities such as fitness classes, bike riding, jogging, yoga, Pilates, and other athletic endeavors) and daily travel so one can remain healthy and hydrated. Thus, protestant asserts that the subject items are not used to store food or liquids in the home for use for the table, kitchen, toilet, office, indoor decoration or similar purposes and thus should not be classified in heading 7013, HTSUS. Protestant also relies upon APM in support of its argument that the subject glass water bottles are classified in heading 7010. Protestant explains that it designed its aforementioned patent-pending silicone sleeves and polypropylene caps to fit stock glass bottles that are 6 Examples include Sephora, Neiman Marcus, Saks Fifth Avenue, and Nordstrom. known in the international packaging trade as “Boston Round Bottles.” Protestant submits evidence that the only difference between stock “Boston Round Bottles” and its own is the imprinted “BKR” logo that is added at the bottom.7 Protestant also submits photographs depicting stock “Boston Round Bottles” that are used by other companies to convey condiments (e.g., flavored ketchups and bar-b-que sauces) and syrup for sale to consumers. Thus, protestant argues that the class of its imported glass bottles (aka “Boston Round Bottles”) are principally sold for the conveyance of beverages or other liquids to wholesale and retail stores and to consumers throughout the United States. Protestant argues that like the stylized glass containers which were filled with biscotti prior to sale in APM, its glass water bottles are also “glass containers of a kind used for the conveyance or packing of goods.” The physical features of the instant glass water bottles are not indicative of disposable packaging or conveyance containers of heading 7010, HTSUS. An article will not generally be regarded as a conveyance container if it will be retained and continually used to store and dispense liquid or food material. See e.g., New York Ruling Letter (NY) N255683, dated August 27, 2014; NY N065020, dated July 10, 2009. The instant glass water bottles are sturdily constructed from durable glass, and together with their silicone sleeves, as protestant acknowledges, are suitable for repeated handling and use. Furthermore, their perforated polypropylene lids allow for easy use to store and protect water or other beverages with the lid on, maintaining the contents free of debris. The protestant admits they are ideal for reuse and are easy to clean. The consumer is thus unlikely to discard the glass water bottles after us