HQ 959941

October 27, 1997

CLA-2 RR:CR:GC 959941 PH

CATEGORY: Classification

TARIFF NO.: 7010.92.50; 7013.39.20; 7013.39.50; 7013.39.60

Port Director

U.S. Customs Service

33 New Montgomery Street, \# 1501

San Francisco, CA 94105

RE: Protest 2809-96-101228; various glass containers; conveyance

or packing of goods; preserving jars of glass; glassware for

table, kitchen, toilet, office, indoor decoration; household

storage articles; principal use; eo nominee; 7010; 7013; EN

70.10; EN 70.13; U.S. Additional Note 1(a); T.D. 96-7; Myers v.

United States, CIT Slip Op. 97-75; Group Italglass U.S.A., Inc.

v\. United States, 17 CIT 226 (1993); Commercial Aluminum Cookware

Co. v. United States, 938 F. Supp. 875 (CIT 1996); Kraft, Inc, v.

United States, 16 CIT 483 (1992); G. Heilman Brewing Co. v.

United States, 14 CIT 614 (1990); United States v. Carborundum

Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert.

denied, 429 U.S. 979 (1976); HRL 959639; untimely protest; 19

U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e); Myers v. United States,

CIT Slip Op. 97-75; Penrod Drilling Co. v. United States, 13 CIT

1005, 727 F. Supp. 1463 (1989), rehearing dismissed, 14 CIT 281,

740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d

406 (1991)

Dear Port Director:

This is in response to Protest 2809-96-101228, which

pertains to the tariff classification of certain articles of

glass under the Harmonized Tariff Schedule of the United States

(HTSUS). Pictorial representations were submitted for our

review.

FACTS:

The merchandise consists of various glassware, as described

in the following table (based on pictorial representations and

information obtained from the importer). Glassware under the

February 23, 1996, entry is not described because the protest was

untimely as to that entry (see below) (for future reference,

classification of items in the February 23, 1996, entry should be

in accordance with HRL 959639, dated October 21, 1997, copy

enclosed, and this ruling). Information is available only on the

described glassware; based on the entry documentation for the

February 23, 1996, entry, other glassware may have been imported

under the protested entries and may have been liquidated under

subheading 7010.91.50 or 7010.92.50, HTSUS, free of duty; this

ruling does not address whether the classification of such items

was correct.

Code/Ref.

Denomination &

Size

Description

B0378

Vaso Lubo

Spaghetti 2275

\[ml.; unless

otherwise

indicated, this

figure represents

milliliters\]

Cylindrical shape with

enlarged base (\"spaghetti jar\"

shape), tall, no neck, very

large opening with cork lid,

rim.

B0822

Vaso Barilotto

2000

Keg or barrel shape with rope

handle (rope goes around the

article), large opening, small

neck rises from side of

barrel, rim, spigot in top of

barrel opposite the opening.

B4300

Borgognotta RC 750

Cylindrical shape, then

gradual diminishing of

diameter to neck (standard

wine bottle shape), moderate

length neck, small opening,

rim.

B5348

Cono Nero 500

Conical shape (diminishing of

diameter upwards) (similar to

an Erlenmeyer flask in shape),

moderate length neck, small

opening, rim.

B5936

Obelisco 250

Four sides, width diminishes

upward and then enlarges to

same size as base, then

diminishes gradually to form

an obelisk shape, very short

or no neck, small opening.

\[Picture very unclear.\]

00574

Anfora Giglio 250

Six sides with one handle,

long cylindrical neck,

moderate sized opening, rim

(possibly with a pouring

channel) (similar to a pitcher

or cruet in shape).

00988

Vaso Trangolare

500

Three sides diminishing in

width upwards (creating

triangle sides), very short

neck, large opening, rim.

00990

Vaso Trangolare

750

Same as 00988 except for size.

02273

Uvina Mignon 40

Pitcher shape (wide base,

narrowing then widening

(appears to have grape-like

pattern embossing in wide

part) before narrowing to

neck, tall, handle, moderate

sized opening, moderate length

neck, pouring lip (with

channel), lid of cork.

05553

Cuore 250

Round base, diameter

diminishes then enlarges into

globular shape (larger than

base, appears to have

decorative embossing), short

neck, small opening, rim.

Four entries, of February 23 through April 9, 1996, are

included in the protest. The first entry was liquidated on June

14, 1996, and the other entries were liquidated on August 16,

1996, with classification of the protested articles under

subheading 7013.39, HTSUS.

On September 13, 1996, the importer protested, stating in

block 9 of the protest form (\"DETAILED REASONS FOR PROTEST AND/OR

FURTHER REVIEW\"):

I respectfully request a full duty refund for all glassware

classified at 7013. I request all merchandise classified at

7013 be reclassified at 7010/duty free. \...

The Customs Protest and Summons Information Report (Customs

Form 6445) prepared by the Import Specialist states that the

importer\'s position is that:

No imported bottles are dutiable and all bottles are

classifiable as 7010.92.50/Free. Importer claims that all

bottles are imported empty and sold to customers that fill

them. \...

Further review was requested and granted.

The competing headings, as of the time under consideration,

are as follows:

7010: \[c\]arboys, 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.

Goods classifiable under subheading 7010.91.50 (\... \[o\]ther, of a

capacity: \[e\]xceeding 1 liter: \...\[o\]ther containers (with or

without their closures)) or subheading 7010.92.50 (\... \[o\]ther,

of a capacity: \... \[e\]xceeding 0.33 liter but not exceeding 1

liter: \...\[o\]ther containers (with or without their closures))

receive duty-free treatment.

7013: \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018).

The 1996 general column one rate of duty for goods classifiable

under subheading 7013.39.20 (\... \[g\]lassware of a kind used for

table (other than drinking glasses) or kitchen purposes other

than that of glass-ceramics: \... \[o\]ther: \... \[o\]ther: \[v\]alued

not over \$3 each) is 28.5% ad valorem. The 1996 general column

one rate of duty for goods classifiable under subheading

7013.39.50 (\... \[g\]lassware of a kind used for table (other than

drinking glasses) or kitchen purposes other than that of

glass-ceramics: \... \[o\]ther: \... \[o\]ther: \... \[v\]alued over \$3

each: \... \[o\]ther: \[v\]alued over \$3 but not over \$5 each) is 15%

ad valorem. The 1996 general column one rate of duty for goods

classifiable under subheading 7013.39.60 (\... \[g\]lassware of a

kind used for table (other than drinking glasses) or kitchen

purposes other than that of glass-ceramics: \... \[o\]ther: \...

\[o\]ther: \... \[v\]alued over \$3 each: \... \[o\]ther: \...
\[v\]alued

over \$5 each) is 7.2% ad valorem.

ISSUE:

Was the protest timely and, if timely, is the glassware

classifiable as containers of a kind used for the conveyance or

packing of goods, preserving jars of glass, or glassware of a

kind used for decoration or similar purposes?

LAW AND ANALYSIS:

Initially, we note that as to the February 23, 1996, entry,

the protest was untimely (i.e., protest must be filed within 90

days after but not before the notice of liquidation (19 U.S.C.

1514(c)(3)(A); 19 CFR 174.12(e)); notice of liquidation was dated

June 14, 1996, and the protest was filed September 13, 1996, 91

days after the notice of liquidation (16 days in June, 31 days in

July, 31 days in August, and 13 days in September). For an

example of the judicial treatment of a protest filed 1 day after

the 90-day period for filing a protest, see Penrod Drilling Co.

v\. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing

dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed.

Cir. (T) 60, 925 F. 2d 406 (1991). The protest must be denied as

to the February 23, 1996, entry. As to the remaining entries,

the protest was timely filed (see above) and the matter protested

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 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. 89-80, published in

the Federal Register August 23, 1989 (54 FR 35127, 35128).

The provision for preserving jars of glass in heading 7010

is an eo nomine provision (Myers v. United States, CIT Slip Op.

97-75, decided June 17, 1997). 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, supra).

The provision for preserving jars of glass in heading 7010

was considered in Myers, supra. That case concerned jars with

wire bail and rubber ring closure systems. The Court found the

jars to be classifiable under the provision for \"preserving jars

of glass\" in heading 7010. The Court concluded that:

The three fundamental feature\[s\] which distinguish

preserving\' jars from packing and conveyance\' jars and

storage\' jars are: (1) the thickness of the glass in the

walls of the jars; (2) the jar\'s ability to form and

maintain a hermetic seal; and (3) the jar\'s potential for

reuse as a canning or preserving jar.

In this case, the glass containers have no ability to form

and maintain a hermetic seal, nor is there any indication that

the containers have potential for reuse as canning or preserving

jars (the pictorial representations are not clear enough to

indicate whether the containers are composed of thick glass).

The containers in this case are not \"preserving jars of glass\"

and may not be classified under that provision.

The other 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:

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 CFR 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, 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.

The EN for heading 7010 is helpful in this analysis. 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 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. Supra, at p. 320 and p. 305,

respectively.

Based on the above authorities Customs issued Treasury

Decision (T.D.) 96-7 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\. T.D. 96-7 is effective as to the protested entries (see

the \"EFFECTIVE DATE\" section of T.D. 96-7, according to which

\"\[a\]ny changes in tariff classification resulting from the

implementation of these guidelines and any revocation of

inconsistent rulings will be effective regarding merchandise

entered for consumption or withdrawn from a warehouse for

consumption on or after February 2, 1996\").

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 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 merchandise

is as follows. All of the articles appear to be manufactured by

automatic machines from ordinary glass. Item B4300 is similar in

shape to an ordinary wine bottle. It has a small opening,

moderate length neck, and is configured to hold a cork or similar

closure. An ultimate purchaser\'s primary expectation would be to

discard or recycle the article after the conveyed or packed goods

are used (note that although the article is configured for a cork

lid which allows for repetitive, extremely easy, opening and

closing, its physical shape is not at all out of the ordinary

(i.e., it is shaped like an ordinary wine bottle)). The

protestant states that the container is sold from the importer to

a customer who fills it, as its physical shape indicates (see

above), the item is of this kind (we emphasize, as stated above

(citing Italglass, supra), that the competing tariff provisions

are principal use provisions, not actual use provisions). There

is no evidence as to whether the container is emphasized over the

goods packed in it, but the physical form of the article (see

above) indicates that this is not so. 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 article (see above) indicates

that it is used to pack and convey goods to a consumer who

discards it after its initial use. On the basis of these

criteria, we conclude that this article is principally used for

the conveyance or packing of goods. The article is properly

classifiable under heading 7010 and, therefore, may not be

classified under heading 7013 (see above, citing Myers, supra).

Items B4300 is classifiable as a container of glass of a kind

used for the conveyance or packing of goods in subheading

7010.92.50, HTSUS.

Items B0378 and B0822 are large containers (2,000

milliliters) with unusual shapes, not at all like conventional

jars. Neither is configured to \"hold\" a lid or cap, other than a

cork or similar closure (additionally, item B0822 has a spigot).

Item B0378 is tall and has no neck, a very large opening, and a

rim. Item B0822 has a small neck, moderate sized opening, and a

rim. An ultimate purchaser\'s primary expectation would not be to

discard or recycle the articles after the conveyed or packed

goods, if any, are used, as evidenced by the shapes of the

articles (item B0378 in the shape of a \"spaghetti\" jar; item

B0822 similar to a beer keg), the fact that the openings are

configured only for a cork or similar lid, and such lids allow

for repetitive, extremely easy, opening and closing, a feature

indicating reusability, and the spigot in item B0822 that also

allows for repetitive and convenient reuse. The protestant

states that the containers are sold from the importer to a

customer who fills them (as emphasized above, the competing

tariff provisions are principal use provisions, not actual use

provisions). There is no evidence as to whether the containers

are emphasized over the goods packed in them, but the physical

form of the articles (see above) indicates that this is so. 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 these articles are not principally used for the

conveyance or packing of goods. Classification under heading

7010 is precluded.

Items B5348, 00574, and 02273 are similar in shape to

cruets, vases, or pitchers and item 05553 is a globular shaped

bottle with a base. Items B5348 and 05553 have small openings

and items 00574 and 02273 have moderate sized openings, item

00574 has a long neck, items B5348 and 02273 have moderate length

necks, and item 05553 has a short neck. Each item has a rim, but

none is configured to \"hold\" a lid or cap, other than a cork or

similar closure. An ultimate purchaser\'s primary expectation

would not be to discard or recycle the articles after the

conveyed or packed goods, if any, are used, as evidenced by the

fact that the items are configured only for a cork or similar

lid, and such lids allow for repetitive, extremely easy, opening

and closing, a feature indicating reusability, and that each

items is in the shape of a reusable storage article (B5348 like a

cruet or vase, 00574 like a pitcher or cruet with a handle, 02273

like a pitcher with a handle, and item 05553 with an unusual

decorative shape and appearing to have decorative embossing).

The protestant states that the containers are sold from the

importer to a customer who fills them, (as emphasized above, the

competing tariff provisions are principal use provisions, not

actual use provisions). There is no evidence as to whether the

containers are emphasized over the goods packed in them, but the

physical form of the articles (see above) indicates that this is

so. 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 these articles are not principally used for the

conveyance or packing of goods. Classification under heading

7010 is precluded.

Items B5936, 00988, and 00990 are jars with geometrical

shapes (3-sided, or 4-sided obelisk shape). They have very short

or no necks and the first has a small opening while the latter

two have large openings. Each has a rim and is not configured to

\"hold\" a lid or cap, other than a cork or similar closure. An

ultimate purchaser\'s primary expectation would not be to discard

or recycle the articles after the conveyed or packed goods, if

any, are used, as evidenced by the fact that each item is

configured only for a cork or similar lid, and such lids allow

for repetitive, extremely easy, opening and closing, a feature

indicating reusability, as well as the unusual geometrical shapes

of the items. The protestant states that the containers are sold

from the importer to a customer who fills them (as emphasized

above, the competing tariff provisions are principal use

provisions, not actual use provisions). There is no evidence as

to whether the containers are emphasized over the goods packed in

them, but the physical form of the articles (special geometrical

shapes) indicates that this is so. 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 these articles

are not principally used for the conveyance or packing of goods.

Classification under heading 7010 is precluded.

All of the foregoing 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 (and in

one case, a spigot) 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. 96-7 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, \"decanters\", \"pitchers\", \"jugs\",

and \"oil or vinegar cruets\"). Accordingly, items B0378, B0822,

B5348, B5936, 00574, 00988, 00990, 02273, and 05553 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 glass-ceramics, in

subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS,

depending on value.

HOLDINGS:

\(1\) The protest was untimely as to the February 23, 1996

entry (19 U.S.C. 1514(c)(3)(A); 19 CR 174.12(e)).

\(2\) Item B4300 is classifiable as a container of glass of a

kind used for the conveyance or packing of goods in subheading

7010.92.50, HTSUS.

\(3\) Items B0378, B0822, B5348, B5936, 00574, 00988, 00990,

02273, and 05553 are classifiable as glassware of a kind used for

table (other than drinking glasses) or kitchen purposes, in

subheading 7013.39.20, 7013.39.50, or 7013.39.60, HTSUS,

depending on value.

The protest is GRANTED IN PART (as to item B4300) and DENIED

IN PART (as to all other items, and also as to the February 23,

1996, entry, due to untimely filing). 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, with the Customs Form 19, 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 the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the 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, Freedom of Information

Act, and other public access channels.

Sincerely,

John Durant, Director,

Commercial Rulings Division

Enclosure