HQ 956218

August 23, 1994

CLA-2 CO:R:C:M: 956218 MMC

CATEGORY: Classification

TARIFF NO.: 7323.99.90

District Director

U.S. Customs Service

10 Causeway Street

Boston, MA 02222-1059

RE: Protest 0401-93-100671; Containers, Tins, Metal Biscuit/food

Canisters; 7310.29.00; NYRLs 894758, 880066; PC 865788; EN 73.10,

73.23

Dear District Director:

The following is our response to the request for further

review of Protest 0401-93-100671 concerning your action in

classifying and assessing duty on various metal biscuit/food

canisters under the Harmonized Tariff Schedule of the United States

(HTSUS).

FACTS:

The subject articles are highly decorated painted metal

canisters. Pictures submitted indicate that these articles are

made in a variety of shapes and sizes. Invoice and packing lists

identify the various canisters by describing their painted designs.

These designs vary, but appear to have a circa 1930\'s theme.

Various slogans for products of the 1930\'s are printed on some of

the canisters. Others have an English or Italian country village

motif. Protestant indicates that they are imported empty.

Protestant did not indicate the articles\' constituent metal.

The subject articles were entered under subheading 7310.29.00,

HTSUS, as tanks, casks, drums, cans, boxes and similar containers

of iron or steel. However, the entry was liquidated on January 3,

1994, under subheading 7323.99.90, HTSUS, as table, kitchen and

other household articles, of iron or steel. The protest was timely

filed on January 12, 1994.

The headings under consideration are as follows:

7310 Tanks, casks, drums, cans, boxes and similar containers,

for any material (other than compressed or liquefied

gas), of iron or steel, of a capacity not exceeding 300

liters, whether or not lined or heat insulated, but not

fitted with mechanical or thermal equipment

7323 Table, kitchen or other household articles and parts

thereof, of iron or steel; iron or steel wool; pot

scourers and scouring or polishing pads, gloves and the

like or iron or steel

According to protestant, another importer of the subject

articles obtained a pre-entry classification determination (PC)

which classifies the subject articles under heading 7310, HTSUS.

See, PC 865788 dated August 14, 1991.

ISSUE:

Whether the painted canisters are classifiable as other

containers of iron or steel or as table, kitchen or other household

articles of iron or steel.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance

with the General Rules of Interpretation (GRI\'s). GRI 1, HTSUS,

states in part that for legal purposes, classification shall be

determined according to the terms of the headings and any relative

section or chapter notes.

In understanding the language of the HTSUS, the Harmonized

Commodity Description and Coding System Explanatory Notes (ENs) may

be consulted. The ENs, although not dispositive nor legally

binding, provide a commentary on the scope of each heading of the

HTSUS and are generally indicative of the proper interpretation of

these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August

23, 1989). EN 73.10, pg. 1022, states, in pertinent part, that:

\...this heading covers sheet or plate iron or steel containers

of a capacity not exceeding 300 l, but of a size easily moved

or handled, commonly used for the commercial conveyance and

packing of goods, and such containers installed as fixtures.

\...the smaller containers \[covered by this heading\] include

boxes, cans, tins, etc., mainly used as sales packing for

butter, milk, beer, preserves, fruit or fruit juices,

biscuits, tea, confectionery, tobacco, cigarettes, shoe cream,

medicaments, etc.

\...This heading also excludes:

\...(b) Biscuit barrels, tea caddies, sugar tins and

similar household or kitchen containers and canisters

(heading 73.23)

EN 73.23, pgs. 1035-1036, states, in pertinent part, that:

\(A\) TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND PARTS

THEREOF

This group comprises a wide range of iron or steel articles,

not more specifically covered by other headings of the

Nomenclature, used for table, kitchen or other household

purposes;\...

\...These articles may be cast, or of iron or steel sheet,

plate, hoop, strip, wire, wire grill, wire cloth, etc., and

may be manufactured by any process (moulding, forging,

punching, stamping, etc.). They may be fitted with lids,

handles or other parts or accessories of other materials\...

\...The group includes:

\(1\) Articles for kitchen use such as saucepans, steamers,

pressure cookers, preserving pans, stew pans, casseroles, fish

kettles; basins; frying pans, roasting or baking dishes and

plates; gridirons, ovens not designed to incorporate heating

elements; kettles; colanders; frying baskets; jelly or pastry

moulds; water jugs; domestic milk cans; kitchen storage tins

and canisters (bread bins, tea caddies, sugar tins, etc.);

salad washers; kitchen type capacity measures; plate racks,

funnels.

Based on the evidence presented, it is our opinion that the

subject canisters are of a type described by EN 73.23. The

articles are imported empty. They are highly decorated and appear

to be hand painted. Customs believes that this practice is usually

more expensive and durable than machine painting and tends to

emphasize the articles\' decorative nature. Finally, while some

submitted pictures show containers holding cookies, candies,

coffee, sewing accessories and pasta, nothing in protestant\'s

submission demonstrates that the canisters are mainly used for the

commercial conveyance or packing materials of goods. Therefore,

the articles are classifiable under subheading 7323.99.90, HTSUS,

as other table, kitchen and other household articles, of iron or

steel. Because protestant did not provide the articles\'

constituent metal, classification under subheading 7323.99.50,

HTSUS, as table, kitchen and other household articles of tinplate

is precluded.

This conclusion is consistent with two other Customs rulings.

New York Ruling Letter (NYRL) 880066, dated November 17, 1992, held

that a small can made of tinplate with a painted lily and removable

top was classifiable under subheading 7323.99.50, HTSUS.

Similarly, NYRL 894758, dated February 24, 1994, determined that a

set of three tinplate cylindrical canisters with removable lids was

classifiable under the same subheading.

Protestant cites PC 865788 as precedent for classifying the

subject articles as containers. We disagree. The pre-entry

classification determination merely states \"Tins (empty)\" and

provides a subheading with duty rate, without providing a

description of the article classified. Because pre-classification

determinations rarely provide complete article descriptions and are

not published or made generally available to the public, Customs

maintains that they are only binding for their recipient importer.

They cannot be relied upon by another party and have no

precedential value other than for the recipient.

HOLDING:

The subject canisters are classifiable under subheading

7323.99.90, HTSUS, which provides for other table, kitchen and

household articles of iron or steel.

The protest should be denied. In accordance with Section 3A

(11)(b) of Customs Directive 0993550-065, dated August 4, 1993,

Subject: Revised Protest Directive, this decision, together with

the Customs Form 19, 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 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 Ruling 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