HQ 957960

February 5, 1996

CLA-2 RR:TC:MM 957960 MMC

CATEGORY: Classification

TARIFF NO.: 1704.90.20; 7013.39.20

Port Director

U.S. Customs Service

200 Granby St.

Norfolk, VA 23510

RE: Protest 1401-95-100045; Candy filled jar; EN GRI 3(b); HRLs

957246, 956386, 956577, 955781, 0871280, 956368, 955857,

957327, 085326, 082954, 954479; NYRL 856591; T.D. 96-7, 61.

Fed. Reg. 223,229 (January 3, 1996); Fontana Hollywood Corp.

v\. U.S., Group Italglass v. U.S., G. Heilman Brewing Co. v.

U.S., U.S. v. Carborundum, Kraft Inc. v. U.S.

Dear Port Director:

The following is our response to Protest 1401-95-100045

concerning your actions in classifying and assessing duty on candy

filled jars, under the Harmonized Tariff Schedule of the United

States (HTSUS). Samples, as well as pictures of the subject

articles, were submitted for our review. In preparing this ruling,

consideration was given to supplemental submissions made by counsel

on behalf of the protestant dated October 10 and 18, 1995, as well

as arguments presented at a meeting on October 11, 1995, at Customs

Headquarters.

FACTS:

The subject article consists of flavored hard candies packed

in glass jars. The jars are made of clear glass and hold 750

milliliters, have mold seams, knurling, and a fired lip finish.

Additionally, a molded, 2 digit number appears on the outer surface

of the side of each jar and a paper label is glued to the jar which

contains a brand name, product description, list of ingredients,

and inventory bar code. Their matching glass lids have molded

knobs that serve as handles to open and close the jars. 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. A decorative

resealable bow is affixed between the jar and lid. The candy

filled jars are imported on pallets covered with shrink wrap, which

are purchased by mass merchandisers in the U.S. and then displayed

and sold, in their condition as imported, at retail stores.

Protestant entered the candy filled jars under subheading

7010.90.50, HTSUS. The entries were liquidated on December 2,

1994, under subheading 7013.39.20, HTSUS. A protest was timely

filed on March 2, 1995. 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%

1704.90.20 Sugar confectionery (including

whitechocolate), not containing cocoa, other,

confections or sweet meats ready for

consumption, other \...\...\...6.8%

ISSUE:

Is the candy filled jar 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? Is the candy classifiable

separately or together with the jar?

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 the candy and jar should be

classified together under the provision for glass containers of a

kind used for the packing and conveyance of goods or in the

alternative, under the provision for candy. Protestant asserts

that the article is a composite good or a set, and the candy

provides the essential character of the whole.

In understanding the language of the HTSUS, the Explanatory

Notes (ENs) of the Harmonized Commodity Description and Coding

System 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 HTSUS. See, T.D. 89-90, 54 Fed. Reg.

35127, 35128 (August 23, 1989). EN IX to GRI 3(b) , pg. 4,

states, in pertinent part, that:

\(IX\) For purposes of this Rule, composite goods made up of

different components shall be taken to mean not only

those in which the components are attached to each

other to form a practically inseparable whole but also

those with separable components, provided these

components are adapted one to the other and are

mutually complementary and that together they form a

whole which would not normally be offered for sale in

separate parts.

EN IX to GRI 3(b) also sets forth two examples of articles

regarded as composite goods:

1\) Ashtrays consisting of a stand incorporating a

removable ash bowl;

2\) Household spice racks consisting of a specially

designed frame (usually of wood) and an appropriate number

of empty spice jars of suitable shape and size.

The EN to GRI 3(b) include as composite goods components which

are attached to one another so as to form a whole, as well as

those components which are separable so long as they are

\"mutually complementary,\" \"form a whole\" and would \"not normally

be offered for sale in separate parts.\" In determining whether

the subject articles meet the definition of \"composite good,\" we

apply the criteria set forth in the EN to the candy and jar.

The candy and jar are not attached to one another. We must,

however, further examine the merchandise to determine whether the

articles are \"mutually complementary,\" \"form a whole\" and whether

the goods would \"not normally be offered for sale in separate

parts.\" With regard to the first criterion, this office has not

been presented with substantiating evidence that the candy and

jar are mutually complementary. The jar is not specially shaped

or fitted to accommodate the candy. Rather, it is of a dimension

similar to, and has the capacity to hold the sort of items

typically stored or transported in jars described by the class or

kind \" glass storage jars\" provided for under subheading 7013.99,

HTSUS. 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).

Protestant states that the candy and jar are mutually

complementary to each other because they are intended to be used

together. We do not agree. While, in this instance, these

articles may be sold together, each functions independently of

the other. The function of the candy as it relates to the jar is

very different from the exemplars of composite goods set forth in

the EN to GRI 3(b). The exemplars describe items that have no

real function independent of one another e.g.: spice rack/jars

and stand/ashtray. In this case, the candy and jar may be sold

together, but they also have independent functions and are

normally offered to the consumer separately. Headquarters Ruling

Letter 957246, dated March 29, 1995, states that:

\"the phrase would not normally be sold in separate parts\'

does not refer to how the components are actually marketed.

Rather, it pertains to whether the components would normally

or principally be sold independently of one another.\"

Candy is not normally sold with storage jars. Catalogs as well

as retail displays indicate that, candy can be sold and packaged

in a variety of ways, such as paper boxes, plastic bags, in bulk,

individually wrapped pieces, etc. and that in a significant

amount of instances, jars are sold to the consumer empty. We

find this persuasive evidence that candy and jars are normally

sold separately and, on this basis, Customs does not consider the

subject merchandise to constitute a composite good for

classification purposes.

In support of the contention that the subject articles are

composite goods, protestant cites HRL 956386 dated July 7, 1994,

and HRL 956577 dated April 17, 1995, which held, respectively,

that a candle poured into a tin and a candle poured into a bail

and trigger closure jar were classifiable together under the

provision for candles. Although HRLs 956386 and 956577 appear

similar to the subject merchandise, there are significant

factors which distinguish their analysis and holdings. In both

of the rulings, the candle, in hot wax form, was poured into the

container where it took on that container\'s shape as it cooled.

Once it took on the container\'s shape, it was no longer removable

from the container and therefore, incapable of an independent

use. This same principle applies to HRL 955781 dated April 26,

1994, HRL 087280 dated July 16, 1990, and HRL 086344 dated July

5, 1990. All of these ruling determined that various types of

clothing with carrying bags were composite goods because the

bags did not have an independent use. See also HRL 956368 dated

July 7, 1994, holding a glass bottle and its wooden \"cradle\" to

be a composite good.

The distinguishing feature between the \"containing\" articles

in each of the cited cases and the jar in this case, is that this

type of jar is usually sold separately. This distinction

controls whether components are composite goods or not. See HRL

955857 dated August 11, 1994, classifying non-removable potpourri

in a jar as a composite good.

Finally, Protestant asserts that articles imported with food

are classifiable under the respective food provision. As support

for this assertion, Protestant cites New York Ruling Letter

(NYRL) 856591 dated October 4, 1990, which classified butter

cookies in a metal tin that played music when opened under the

provision for butter cookies. The ruling provides only a general

description of the article and no analysis concerning the

classification. Therefore, Customs finds it unpersuasive.

Protestant submits that the subject merchandise may be

considered \"goods put up in sets for retail sale\" and cites to

HRL 085326 dated September 22, 1989, HRL 082954 dated December

20, 1989, and HRL 954479 dated October 6, 1993, all of which

classified liquor accompanied by glasses as sets for retail sale.

EN X to GRI 3(b) provides, in pertinent part, that:

For purposes of this Rule, the term goods put up in sets

for retail sale\' shall be taken to mean goods which:

\(a\) consist of at least two different articles which

are, prima facie, classifiable in different headings;

\(b\) consist of products or articles put up together to

meet a particular need or carry out a specific

activity; and

\(c\) are put up in a manner suitable for sale directly

to users without repacking.

However, unlike the liquor and glasses rulings cited above, the

candy and jar are not goods that consist of products or articles

put up together to meet a particular need or carry out a

particular activity. There is no affinity between the candy and

the jar. Although the jar in this instance acts as a holder for

the candy, its normal function is to act as an all purpose

general household storage jar. Consequently, as the candy and

glass jar do not meet the requirement of part (b), they do not

compromise a \"set\" within the meaning of GRI 3(b). For further

analysis, see HRL 957327 dated February 13, 1995, holding that a

coffee mug and candy did not meet the GRI 3(b) set requirement.

Protestant suggests that classification of the candy filled

jar is governed by GRI 5(b). We disagree. GRI 5(b) states:

\(b\) Subject to the provisions of rule 5(a)\..., packing

materials and packing containers entered with the goods

therein shall be classified with the goods if they are of a

kind normally used for packing such goods. However, this

provision is not binding when such packing materials or

packing containers are clearly suitable for repetitive use.

Rule 5(b) requires packing materials entered with the goods to be

classified with those goods if the packing materials are of a

kind normally used for packing of such goods.

The Customs Court, in Fontana Hollywood Corp. v. United

States, 64 Cust. Ct. 204 (1970) (Fontana), determined that a

gallon cammelloni bottle, standing four feet tall with an

elongated tube-like neck extending three feet from the conical

bottom part dressed in raffia, imported filled with wine was, for

General Headnote 6(b) purposes, an \"unusual\" bottle subject to

tariff treatment as an imported article separate from the wine

content. Congress has indicated that earlier tariff decisions

must not be disregarded in applying the HTSUS. The conference

report to the Omnibus Trade Bill of 1988, states that \"on a
case-by-case basis prior decisions should be considered instructive in

interpreting the HTS\[US\], particularly where the nomenclature

previously interpreted in those decisions remains unchanged and

no dissimilar interpretation is required by the text of the

HTS\[US\].\" H. Rep. No. 100-576, 100th cong., 2d Sess. 548, 550

(1988). General Headnote 6(b) of the Tariff Schedules of the

United States (TSUS), is the predecessor to GRI 5(b) HTSUS.

In Fontana, the court determined that a bottle can be found

\"unusual\"/ not of a kind normally used for the packing of such

goods, on any number of grounds. The court further stated that

proof that imported bottles containing wine are not designed for,

or capable of reuse, and are sold at retail with their contents,

is insufficient to overcome the presumption that they are

otherwise unusual bottles, subject to separate tariff treatment

as imported articles. Finally, the court stated that even if a

container was found to be chiefly used for the packing,

transportation or marketing of wine, that finding would not be

inconsistent with the fact that it is \"unusual\", i.e., of a kind

not usually or ordinarily employed to ship, transport, or market

wine. Like the wine bottle, the storage jars are not usually or

ordinarily employed to ship, transport, or market candy. This

belief is strengthened by protestant\'s lack of evidence to the

contrary. Candy is generally sold in bulk, individually wrapped

or packaged in boxes or bags.

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 jar component

of the article, 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.

The physical characteristics, the fact that the subject

articles while not by this importer, are nonetheless 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 have a fired lip finish rather than a

standard conveyance finish, lids with knob handles molded in

them and a \"rubber seal\" that fits into the neck of the jar and

seals in freshness. This seal also allows for repetitive,

extremely easy, opening and closing of the jar, and is a feature

which clearly indicates reusability. In contrast, containers

belonging to this class usually have a threaded or beaded finish,

and lids without handles molded into them. Jars with the same

physical characteristics are sold empty at retail outlets for

ultimate purchasers to reuse in the home.

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 candy.

Paper/plastic bags or boxes, bulk storage bins, and individual

wrappings are more commonly used to commercially convey candy.

Additionally, the glass jars are not merely used as containers to

convey the candy to the consumer who then discards the jar but

they also serve display, and disbursing purposes when filled.

Therefore, the jars are described by subheading 7013.39.20,

HTSUS.

The candy filled jar is not classifiable as a composite good

or a set in accordance with GRI 3, nor as packaging in accordance

with GRI 5. Candy and jars are normally sold separately and

they do not serve to carry out a single activity. Accordingly,

the components are to be classified separately. The candy is

classifiable under subheading 1704.90.20, HTSUS, as sugar

confectionery (including white chocolate), not containing cocoa,

other, confections or sweet meats ready for consumption, other.

The glass jar is 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.

HOLDING:

The protest should be DENIED. The components are to be

classified separately. The candy is classifiable under

subheading 1704.90.20, HTSUS, as sugar confectionery (including

white chocolate), not containing cocoa, other, confections or

sweet meats ready for consumption, other with a column on duty

rate of 6.8 % ad valorem. The glass jar is 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