HQ 960162

October 17, 1997

CLA-2 RR:CR:GC 960162 PH

CATEGORY: Classification

TARIFF NO.: 7013.39.20

Port Director

U.S. Customs Service

33 New Montgomery Street, \# 1501

San Francisco, CA 94105

RE: Protest 2809-96-101705; glass containers; cruet; elongated,

long necked jar with rim; principal use; conveyance or packing of

goods; preserving jars of glass; glassware for table, kitchen,

toilet, office, indoor decoration; household glass storage

articles; 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);

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)

Dear Port Director:

This is in response to Protest 2809-96-101705, 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 under protest consists of two glass articles

(other pieces of glassware were imported under the protested

entry but were liquidated with classification in subheading

7010.92.50, HTSUS, free of duty; this ruling does not address

whether the classification of those items (05434P, 00609P, and

05060P) was correct). The articles under protest are invoiced as

\"BOTT. TUSCIA 375 \[ml.\]\" (code 00635P) and \"BOTT. BORDUNDO 500

\[ml.\]\" (code 03421P). According to the illustrations of these

articles, item 00635P is a cruet-shaped article with a flat base,

handle, relatively wide opening, and lip. Item 03421P has a

cylindrical shape, is elongated (i.e., very tall relative to its

width), and has a very long neck, small opening, and rim around

the opening.

An entry of May 21, 1996, is included in the protest. The

entry was liquidated on September 13, 1996, with classification

of items 00635P and 03421P under subheading 7013.39.20, HTSUS.

On December 12, 1996, the importer protested, citing

\"ATTACHED JUSTIFICATION\". The file contains no such attachment,

but 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. \...

The competing subheadings, as of the time under

consideration, are as follows:

7010.92.50: \[c\]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

0.33 liter but not exceeding 1 liter: \...

\[o\]ther containers (with or without their

closures).

Goods subject to the column one rate of duty and classifiable

under subheading 7010.92.50 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 subheading 7013.39.20 is 28.5% ad valorem.

ISSUE:

Are the 375 milliliter cruet-shaped article of glass and the

500 milliliter cylindrically shaped, elongated jar classifiable

as containers of a kind used for the conveyance or packing of

goods or glassware of a kind used for decoration or similar

purposes?

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 that 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 competing classifications are under headings 7010 and

7013, HTSUS. Heading 7010, HTSUS, provides for glass containers

of a kind used for the conveyance or packing of goods, preserving

jars of glass, and certain closures. Heading 7013, HTSUS,

provides for glassware of a kind used for table, kitchen, toilet,

office, indoor decoration or similar purposes, not including

glassware covered in heading 7010.

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 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 v.

United States, CIT Slip Op. 97-75, decided June 17, 1997).

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,

applies. It 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, 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. 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),

HTSUS, 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.\" (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 described in T.D. 96-7 in this regard 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. Both articles appear to be manufactured by

automatic machines from ordinary glass. Item 03421P has a

relatively small opening and a very long neck and, although it

has a rim, is not configured to \"hold\" a lid or cap, other than a

cork or similar closure. Item 00635P has a larger opening but,

as a cruet-like article, is not configured to \"hold\" a lid or

cap. 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 item

03421P is configured only for a cork or similar lid, and such

lids allow for repetitive, extremely easy, opening and closing, a

feature indicating reusability, and item 00635P is in the form of

a cruet, a storage article with a handle. The protestant states

that the containers are sold from the importer to a

wholesaler/distributor who then packs the container with goods,

but both articles are of a kind sold to the ultimate purchaser

empty (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 containers are emphasized over the goods packed in

them, but the physical form of the articles (elongated in the

case of item 03421P and in the shape of a cruet, used for table

or kitchen storage of food, in the case of item 00635P) 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

container to pack and convey goods to a consumer who discards the

container after its initial use, the containers, and not their

contents, are emphasized to customers. On the basis of these

criteria, we conclude that neither of these articles is

principally used for the conveyance or packing of goods.

Classification under heading 7010 is precluded.

Both articles are classified under heading 7013. Item

03421P is of a kind which has been sold empty as a household

storage articles, although it can also be used for the commercial

conveyance or packing of goods (see above). The protestant

provides no evidence regarding the principal use of this item,

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 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\", and \"jugs\").

Item 00635P is in the form of a cruet. Cruets are not

articles of a kind used to commercially convey or pack goods (see

discussion of criteria for this determination above) (see above

distinction between principal use and actual use). They are

clearly principally used to store food material (see EN 70.13,

which specifically enumerates \"oil or vinegar cruets\" among the

exemplars listed as being covered by heading 7013 under table or

kitchen glassware).

Accordingly, items 03421P and 00635P 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, other, other, valued not over

\$3 each, in subheading 7013.39.20, HTSUS.

HOLDING:

The 375 milliliter cruet-shaped article of glass and the 500

milliliter cylindrically shaped, elongated jar are 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