HQ 961395

October 20, 1998

CLA-2 RR:CR:GC 961395 PH

CATEGORY: Classification

TARIFF NO.: 7013.39.20

Port Director

U.S. Customs Service

40 South Gay Street

Baltimore, MD 21202

RE: Protest 1303-98-100006; glassware; conveyance or packing of

goods; glassware for table, kitchen, toilet, office, indoor

decoration; household storage articles; principal use; 7010;

7013; U.S. Additional Note 1(a); T.D. 96-7; Group Italglass

U.S.A., Inc. v. United States; Kraft, Inc, v. United States; G.

Heileman Brewing Co. v. United States; United States v.

Carborundum Company; HQ 959638

Dear Port Director:

This is in response to protest 1303-98-100006, which

pertains to the tariff classification of certain articles of

glass under the Harmonized Tariff Schedule of the United States

(HTSUS). A sample was submitted for our examination.

FACTS:

The merchandise consists of a cylindrically shaped jar of

heavy glass, with an enlarged base, a large rim and no neck. The

article is approximately 14\" high and the diameter of the body is

2 7/8\" and that of the base is 4 1/4\". The size of the article

is stated to be 1,062 ml. The article is fitted with a specially

shaped cork closure (broad flat top surface 3\" in diameter, with

a narrower closure portion 2 1/4\" in diameter). The glass has

seams, and on the base, in raised letters, is the inscription

\"\[name\] House of Nuts\".

The merchandise was entered on August 29, 1996, and after

proper extension of liquidation and notice thereof, the entry was

liquidated on November 7, 1997. On February 2, 1998, counsel for

the importer filed this protest.

Citing Group Italglass U.S.A., Inc. v. United States, 17 CIT

226 (1993), Kraft, Inc, v. United States, 16 CIT 483 (1992),

Harmonized Commodity Description And Coding System Explanatory

Note (EN) 70.10 and Treasury Decision (T.D.) 96-7, the protestant

contends that the glassware is properly classified in heading

7010, HTSUS, as containers of glass of a kind used for the

conveyance or packing of goods. Specifically, the protestant

argues that \"EN 70.10 makes it clear that the heading covers

containers of all shapes and sizes which are used as containers

for foods, including those designed for use with ordinary

closures or stoppers of cork.\" On the basis of Kraft, supra, the

protestant argues:

As the Kraft case demonstrates, an unusual or uniquely

shaped container such as \[that under consideration\]

functions to attract the attention of consumers to the

products packed inside, and to compel a purchaser to select

one product over another. The use of a container more

attractive to a consumer does not preclude the glassware

from being a part of a class of containers used for the

conveyance or packing of goods classifiable under heading

7010\.

In regard to the criterion on the use of a \"hot packing\"

process in T.D. 96-7, the protestant states that popcorn is a

foodstuff product that does not require such a process to remain

fresh for consumers. In regard to the other criteria in T.D. 96-7, the
protestant states that the articles are imported from the

manufacturer by the importer and sold to a food packer who fills

them with popcorn, they are never sold empty directly to the

consumer, they are displayed and sold in an environment that

features the food in the container and not the container, they

are used commercially to convey (sell) food, they are designed to

attract the consumer\'s attention to the product in an attempt to

increase sales, and they are not intended to be reused.

The HTSUS headings under consideration, are as follows:

7010.91.50: \[c\]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: \... \[o\]ther, of a capacity:

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

or without their closures).

Goods classifiable under subheading 7010.91.50 receive duty-free

treatment.

7013.39.20: \[g\]lassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \... \[g\]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.

The 1996 general column one rate of duty for goods classifiable

under this provision is 28.5% ad valorem.

ISSUE:

Whether the glassware is classifiable as a container of a

kind used for the conveyance or packing of goods under subheading

7010.91.50, HTSUS, or glassware of a kind used for table,

kitchen, toilet, office, indoor decoration or similar purposes

under heading 7013.39.20, 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)).

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. 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 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 CFR 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. 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. 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 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, HTSUS, or the class \"glassware of a

kind used for table or kitchen purposes; glass storage articles\"

in heading 7013, HTSUS.

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 article appears to be manufactured by

automatic machine from ordinary glass. The article has a

relatively large opening, is not configured to \"hold\" a lid or

cap, other than having a rim with which a cork or similar closure

may be used, and has no neck.

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

discard or recycle the article after the conveyed or packed

goods, if any, are used, as evidenced by the fact that the

article is 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 also

evidenced by the decorative, relatively unusual shape of the

article, fitting it for use in the kitchen for decorative storage

of various kinds of dry goods (e.g., spaghetti and other pastas,

various kinds of beans).

The protestant states that the article is sold from the

importer to a food packer who fills it, but there is no evidence

as to whether this is so for the class or kind involved (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 (special or relatively unusual

shape, configuration for a cork or similar closure allowing for

repetitive, easy opening and closing) 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 container is capable of being used in the

hot packing process. The physical form of the article (see

above) indicates that rather than using the container to pack and

convey goods to a consumer who discards it after its initial use,

the container, and not its contents, is emphasized to customers.

On the basis of these criteria, we conclude that this article is

not principally used for the conveyance or packing of goods.

Classification under heading 7010, HTSUS, is precluded.

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.\"

However, 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 use (see

above). In regard to the \"bear jars\" in Kraft, there are many

distinctions between those jars and the containers in this

protest. Those distinctions include at least the following:

\"Bear jars\" not used to pack food products were destroyed

(16 CIT at 487); there is no evidence that this is so for

the articles under protest.

The \"bear jars\" have the parts which \"\[g\]lass containers

used to pack, transport or market food products have \...

\[including\] a sealing surface, glass lugs used to attach the

closure, the finish (which refers to the sealing surface and

the glass lugs), the body (which includes the shoulder, the

sidewall and the heel), the mold seam, and the bearing

surface which supports the jar on the shelf \[which parts\]

are essential\" (16 CIT at 487). That is, despite their

somewhat unusual shape, the Court found that \"\[t\]he bear

jars, at least because of the lug finish, the mold seam, and

the utilities lid necessitated by the lug finish, are not

particularly handsome\" and \"are clearly not decorative\" (16

CIT at 488). The only parts of the above-enumerated

\"essential\" parts which the articles under protest have are

the mold seam and the bearing surface; further, the special

shape of the article and the cork closure presented with the

sample are decorative.

The \"bear jars\" were packed using the \"hot pack process\" (16

CIT at 487); \"\[t\]he physical characteristics of the usual

and ordinary glass containers used to pack and market food

products \[include the requirement that\] such glass

containers must be designed for use in the hot pack process\"

(16 CIT at 489); there is no evidence that this is so for

the articles under protest.

Plaintiff provided evidence that the \"bear jars\" were used

in a promotional program to market strawberry jam and grape

jelly and, in such programs \"\[t\]he container provides the

physical means of delivering the food product to the

consumer and establishes the image of the product in the

consumer\'s mind\[;\] \[t\]he design of the package also attracts

the consumer\'s attention to the food product in the store\"

(16 CIT at 487-488). The example used by the Court in this

regard (Mrs. Butterworth\'s pancake syrup containers) (16 CIT

at 488), makes clear that one of the reasons that the

somewhat unusually shaped \"bear jars\" were found to be

containers for the packing, transporting, or marketing of

merchandise was the promotional program emphasizing the

shape of the \"bear jars\" with a particular producer\'s

footstuff. There is no evidence of such a promotional

program for the articles under protest.

The article is classified 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 (HQ) 959638 dated October 10, 1997.

HOLDING:

The glassware is classifiable as glassware of a kind used

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

subheading 7013.39.20, HTSUS.

The protest is DENIED. 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