> HQ 963164
>
> November 2, 2001
>
> CLA-2 RR:CR:GC 963164 AML
>
> **CATEGORY:** Classification
>
> **TARIFF NO.:** 7013.39.20
>
> Port Director of Customs
>
> P.O. Box 1490
>
> St. Albans, VT 05478
>
> **RE:** Protest 0201-99-100014; empty glass bottles
>
> Dear Port Director:
>
> This is our decision on Protest 0201-99-100014, filed against your
> classification of empty glass bottles under subheading 7013.39.20,
> Harmonized Tariff Schedule of the United States (HTSUS). Samples of
> the empty bottles and photocopies of the articles filled with vinegar
> or oil were presented for our examination. In preparing the ruling we
> also considered arguments made by counsel for the protestant at a
> meeting held at Customs Headquarters on May 1, 2000. We regret the
> delay in responding.
>
> **FACTS:**
>
> The bottles, which have a 500 milliliter (ml) capacity, are identified
> by the supplier, Vetrerie Bruni U.S.A., as style \# 03763 (Bott Duca),
> and cost 75 cents per bottle. The protestant states that after
> importation the bottles are intended for the packaging and conveying
> of such items as oil and vinegar food condiments.
>
> The protestant describes the empty glass bottles as follows:
>
> The glass at issue (hereinafter the "subject bottle") measures
> approximately 13.75 inches in height. It has an approximate square
> base that is approximately 2.2 inches in width. After the first
> approximately 8 inches the bottle tapers diagonally for approximately
> 2 inches to a round 1-inch wide neck that extends approximately 3.75
> inches to the rim. The rim of the bottles is shaped like most
> conventional wine bottles (not like the wide lip wine

bottles, currently gaining popularity) and is intended for use with a
cork stopper. The bottles are clear glass and made by machine.

The products were entered on July 29, 1997, and the entries were
liquidated on March 26, 1999. The protest was filed on June 24, 1999.

**ISSUES:**

1\. Whether the time period for liquidation was properly extended
pursuant to 19 U.S.C. §1501?

2\. Whether the empty glass bottles are 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)). In regard to protestant's contention that one of
the protested entries (#702-xxxx431-2) should be deemed liquidated as
entered pursuant to 19 U.S.C. §1504, according to Customs records
liquidation for each of the protested entries was properly extended and
notice of that extension was sent to the importer of record and surety.
The protest is denied in regard to this issue (see *International Cargo
& Surety Insurance Co. v. United States*, 15 CIT 541, 779 F. Supp. 174
(1991); *St. Paul Fire & Marine Ins. Co. v. United States*, 6 F.3d 763
(Fed. Cir. (T) 1993); and *Intercargo Insurance Co. v. United States*,
83 F.3d 391 (Fed. Cir. (T) 1996), cert. den. 519 U.S. 1108 (1997)).

The HTSUS provisions under consideration 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:

Other, of a capacity:

7010.92 Exceeding 0.33 liter but not exceeding

1 liter:

7010.92.20 Produced by automatic machine.

7010.92.50 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):

Glassware of a kind used for table (other

than drinking glasses) or kitchen purposes

other than that of glass-ceramics:

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. Customs
believes the ENs should always be consulted. See T.D. 89-80, published
in the [Federal Register]{.underline} 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 C.F.R. §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. Those factors 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," and that is described as the exchange or
buying and selling of commodities. [The Random House Dictionary of
the]{.underline}

[English Language]{.underline} (1973), p. 295, and [Webster\'s New World
Dictionary]{.underline} (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.]{.underline} at p. 320 and p. 305,

respectively.

Based on the above authorities, Customs issued Treasury Decision (T.D.)
96-7 which, *inter alia*, 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. (T.D. 96-7 is effective regarding merchandise
entered for consumption or withdrawn from a warehouse for consumption on
or after February 2, 1996, as is true in this case.)

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: The protestant states and the articles appear to be
manufactured by automatic machines from ordinary (colorless) glass. Each
article has a moderately long neck, 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.

Contrary to the assertions of the protestant, an ultimate purchaser's
primary expectation would not be to discard or recycle the articles
after the conveyed or packed goods are used, as evidenced by the fact
that the bottles are 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 further evidenced by the
relatively long necks of the bottles.

The bottles will be filled with oil or vinegar by the importer and will
be sold in an environment that features the containers and not the goods
packed in the containers. The oil and vinegar are condiments; articles
that constitute foodstuffs. Although the bottle is colorless and smooth,
it is somewhat unique in appearance, designed as a decorative article in
and of itself. No evidence has been presented as to whether the bottles
are capable of being used in the hot packing process.

Insofar as the protestant's arguments on the basis of EN 70.10 and
*Kraft*, *supra*, are concerned, we concur that, as the EN states,
heading 7010, HTSUS, may include the containers enumerated therein \"of
all shapes and sizes\" and that such containers \"generally have \... a
lip or flange to hold the lid or cap \[although\] \[s\]ome \... may be
closed by corks or screw stoppers.\" Further, as stated above and as the
EN makes clear, the critical property for containers covered by heading
7010 is that they must be \"of the \[kind\] commonly used commercially
for the conveyance or packing of liquids or of solid products.\" The
determination of whether a container is of the kind so used is made on
the basis of the analysis of the criteria for principal, as opposed to
actual, use (see above).

The criterion of commercial use to convey foodstuffs, etc., is addressed
by the other criteria (see above). While 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 the containers are intended not only
to pack and convey goods to a consumer, but also to fulfill a decorative
function as well. The consumer would not discard them after their
initial use, but rather display the bottle (compare this to an ordinary
condiment such as ketchup or mustard -- the containers are disposed of
indiscriminately). The containers, and not the contents, are emphasized
to customers. On the basis of these criteria, we conclude that these
articles are principally used for table, kitchen, toilet, office, indoor
decoration or similar purposes and are classifiable under heading 7010,
HTSUS.

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 the bottles (item \# 03763 (Bott Duca)) are not principally used
for the conveyance or packing of goods. Classification under heading
7010, HTSUS, is precluded.

The article is classifiable 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 a

household storage article (see above, *e.g*., the closure allows 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.
96-7 for glassware of a kind used for table or kitchen purposes (glass
storage articles)). Accordingly, the

article is principally used to store food material and is 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, HTSUS.

This is consistent with Headquarters Ruling Letters (HQs) 959639 dated
October 21, 1997 and 961409 dated October 22, 1998. In both rulings, the
Bott Duca (item \# 03763, among others) was classified under subheading
7013.39.20, HTSUS.

**HOLDING:**

The bottles (which have a 500 milliliter (ml) capacity, Vetrerie Bruni
U.S.A., style \# 03763 (Bott Duca) and valued at 75 cents per bottle)
are classifiable as other

glassware of a kind used for table (other than drinking glasses) or
kitchen purposes, under 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 should mail this decision, together with
the Customs Form 19, to the protestant no later than sixty (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
this decision. Sixty (60) 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
the public via the Diskette Subscription Service, the World Wide Web at
*www.customs.treas.gov*, and other public access channels.

Sincerely,

John Durant, Director,

Commercial Rulings Division