HQ 954792

November 24, 1993

CLA-2 CO:R:C:M: 954792 MMC

CATEGORY: Classification

TARIFF NO.: 7013.39.20

District Director

U.S. Customs Service

P.O. Box 789

Great Falls, MT 59403

RE: Protest No.3304-93-100028; 7010.90.50; Additional U.S. Note

1(a); ENs 70.10, 70.13; HRL\'s 088020, 087779, 951991, 953280,

087727

Dear District Director:

The following is our response to the request for further

review of Protest No. 3304-93-100028 concerning your actions in

classifying and assessing duty on glass flip top bottles under

the Harmonized Tariff Schedule of the United States (HTSUS).

Descriptive literature was submitted for our review.

FACTS:

The subject merchandise is a brown glass bottle with a

polypropylene stopper attached to a metal snap closure. It holds

up to 16 liquid ounces and appears to have some form of embossed

decoration in the glass. The literature describes the bottle,

refered to as the \"E.Z. Cap Bottle\", as 100% reusable and

recyclable and suggests its primary use as storage for home

brewed beer.

The merchandise was entered under subheading 7010.90.50,

HTSUS, as jars for the commercial conveyance or packing of goods

or as preserve jars. However, the entry was liquidated on April

30, 1993, under subheading 7013.39.20, HTSUS, as glassware of a

kind used for table or kitchen purposes. The protest was timely

filed on June 17, 1993.

The subheadings under consideration are as follows:

7010.90.50 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:\[o\]ther:

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

closures) Free

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. 30%

ISSUE:

Whether the glass flip top bottles are classifiable as jars

for the commercial conveyance of goods and/or preserve jars or as

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

indoor decoration or similar purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. 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 this case, consideration was given to headings 7010 and

7013, HTSUS, which are both considered \"use\" provisions.

Additional U.S. Note 1(a), HTSUS, provides that: \[i\]n 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 understanding the language of the HTSUS, the Harmonized

Commodity Description and Coding System Explanatory Notes may be

consulted. The Explanatory Notes (EN), although not dispositive,

are to be used to determine the proper interpretation of the

HTSUS. 54 Fed. Reg. 35127, 35128, (August 23, 1989). EN 70.10,

pg. 933-934, states that \"\[t\]his heading covers all glass

containers of the kinds commonly used commercially for the

conveyance or packing of liquids or of solid products (powders,

granules, etc.). They include\...

\(B\) Jars, pots and similar containers for the conveyance or

packing of certain foodstuffs (condiments, sauces, fruit,

preserves, honey, etc.)\...

These articles are usually made of ordinary glass

(colourless or tinted) by pressure in a mold usually

followed by blowing with compressed air. They generally

have a large opening, a short neck (if any) and as a rule, a

lip or flange to hold the lid or cap. Some of these

containers, however may be closed by corks or screwstoppers.

The heading also includes preserving jars of glass.\"

En 70.10 also states that heading 7010, HTSUS, does not include:

\"\[d\]ecanters, drinking glasses and other glass containers

being domestic glassware (heading 70.13), but not containers

used primarily for the commercial conveyance or packing of

goods.\" emphasis added.

EN 70.13, p. 936, states:

This heading covers the following types of articles, most of

which are obtained by pressing or blowing in moulds:

\(1\) Tableware or kitchen glassware, e.g. drinking glasses,

goblets, tankards, decanters, infants\' feeding bottles,

pitchers, jugs, plates, salad bowls, sauce-bowls, basins,

egg-cups, butter dishes, oil or vinegar cruets, dishes (for

serving, cooking, etc.), stew pans, casseroles, trays, salt

cellars, sugar sifters, knife-rests, mixers, table hand

bells, coffee-pots, and coffee-filters, sweetmeat boxes,

graduated kitchenware, plate warmers, table mats, certain

parts of domestic churns, cups for coffee mills, cheese

dishes, lemon squeezers, ice-buckets.

Protestant suggests that its bottles are classifiable in

subheading 7010.90.50, HTSUS, as either containers for the

commercial conveyance of food, or preserve jars. We disagree.

Numerous glass articles used to hold food products within

the home are not classifiable as preserve jars or containers for

the commercial conveyance of goods under subheading 7010.90.50,

HTSUS, but are considered to be of the class or kind of household

storage articles classifiable as table/kitchenware under

subheading 7013, HTSUS.

In Headquarter\'s ruling letter (HRL) 088020, dated January

14, 1991, we considered the classification of 12 sided glass jars

that varied in height from 5 1/2\" to 14\" and had bale/trigger

closures. We held that heading 7010, HTSUS, \"provides for

standard size and shape jars that are used commercially to

convey, pack, or preserve foods.\" Because the subject jars were

shaped and sized differently than jars used to commercially

convey food and were used in the household as kitchen canisters

to hold various types of food they were classifiable in heading

7013, HTSUS. See, HRL 087779 dated December 27, 1990, which

classified a variety of glass jars, including a triangle shaped

glass storage jar with a metal cover and 12 3/4\" high handle and

a round 12\" high, glass storage jar with a cork stopper style

cover in heading 7013, HTSUS; and HRL 953280, dated February 5,

1993, which held that the subject jars were similar to the ones

in the rulings cited above and were shaped and sized differently

than those used to commercially pack and convey food.

The brown glass flip top bottles are not principally used as

the class or kind of merchandise contemplated by heading 7010,

HTSUS. The types of containers found in heading 7010, HTSUS, are

principally used to convey a product to the consumer who uses the

product in the container and then discards the container. The

subject bottles are not used to commercially convey food to a

consumer who discards it after this use, but instead are brought

and used repeatedly to store beer made in the home. In this

respect they function like the enumerated articles of EN 70.13,

e.g., salt cellars, decanters, vinegar cruets, etc.

Protestant cites HRL 951991, dated March 8, 1993, claiming

their bottle is similar to the jar considered in that ruling. We

disagree. In HRL 951991, we held that a green tinted jar with a

cork top was classifiable in heading 7010, HTSUS, because it was

used commercially to convey nuts to consumers for particular

hotels and resorts. The present bottles are not used to

commercially convey a product and therefore are not classifiable

in heading 7010, HTSUS.

Furthermore, the subject jars are not classifiable as

preserve jars. Various Customs rulings have confirmed the

position that household articles holding different volumes than

the typical preserve jars or in different forms than the typical

preserve jars are classifiable in heading 7013, HTSUS. See, HRL

087727, dated September 21, 1990, which held that glass spice

jars were not regarded as preserve jars classifiable in heading

7010, HTSUS, as they were not the size and shape of typical

preserve jars. The subject jars are a different form than the

typical Mason type preserving jar and therefore are not

classifiable as such.

Finally, we note that products similar to the present

bottles are the subject of pending litigation before the Court of

International Trade in Italglass v. United States, (Court No.
91-05-00369-S). Consequently, until this litigation is resolved,

protests regarding the classification of this merchandise should

be denied.

HOLDING:

For the foregoing reasons we find that the glass flip top

bottles are household storage articles classifiable in subheading

7013.39.20, HTSUS, as table/kitchen glassware.

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, Lexis, Freedom of Information Act and other

public access channels.

Sincerely,

John Durant, Director

Commercial Rulings