HQ 959637

December 4, 1997

CLA-2 RR:CR:GC 959637 PH

CATEGORY: Classification

TARIFF NO.: 7010.90.20; 7013.39.20; 7013.99.40; 7013.99.50

Port Director

U.S. Customs Service

C/O Chief, Residual Liquidation and Protest Branch

6 World Trade Center, Room 761

New York, NY 10048-0945

RE: Protest 1001-95-110328; various glass containers; conveyance

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

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

glass storage articles; wire bail and rubber ring closure system;

principal use; eo nominee; 7010; 7013; EN 70.10; EN 70.13; U.S.

Additional Note 1(a); T.D. 96-7; HQs 087359; 956526; 957873;

Myers v. United States, 969 F. Supp. 66 (CIT 1997); 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)

Dear Port Director:

This is in response to Protest 1001-95-110328, which

pertains to the tariff classification of certain articles of

glass under the Harmonized Tariff Schedule of the United States

(HTSUS). Samples and product brochures were submitted for our

review.

FACTS:

The merchandise consists of various pieces of glassware, as

described in the following table (based on the invoices for the

merchandise, a catalogue submitted by the protestant, and samples

if provided). Entered value for the glassware ranges from \$.23

to \$2.29 per piece. Each piece appears to be of heavy glass.

According to the protestant, the glassware is made on automatic

forming machines of ordinary, recyclable glass, with many made of

previously recycled glass. Mold seams appear on the sides of all

of the glassware and identifying symbols and container capacities

are molded into the bottoms of many. Each piece of glassware is

imported empty, with a closure or stopper.

Code/Ref.

Denomination

(Cat. Page #) Description

333 \[2\]

Bote Octogonal 106

cc

\(40\) Octagonal shape, green

tint, short neck, lip, wide

opening, lid of cork (2nd

model has lid of glass and

cork (with knurl on top)), 115

ml\. (Sample provided.)

333/2 \[2\]

Bote Galaxy 106 cc

\(40\) Four sides, green tint,

short neck, lip, wide opening,

lid of cork (2nd model has lid

of glass and cork (with knurl

on top)), 110 ml. (Sample

provided.)

333/3 \[2\]

Bote Delta 106 cc

\(40\) Three sides, green tint,

short neck, lip, wide opening,

lid of cork (2nd model has lid

of glass and cork (with knurl

on top)), 110 ml.

394

Botella Anis

\(38\) Cylindrical shape,

diamond pattern embossing,

green tint, neck of moderate

length, rim, lid of cork, 45

ml\.

394/1

Gaseosa Anis

(\"Miniatura Anis

Gaseosa\" in

catalogue)

\(36\) Cylindrical shape,

diamond pattern embossing,

green tint, neck of moderate

length, wire bail and rubber

ring closure system, 50 ml.

444

Botella Picasso

\(38\) Four sides (rounded

edges), facing triangle

pattern embossing, green tint,

rim, neck of moderate length,

lid of cork, 45 ml.

578

Bote Trabuco Peq.

\(40\) Cylindrical shape, green

tint, short neck, lip, wide

opening, lid of cork, 45 ml.

581 \[2\]

Licorera Romos

\(41\) Short broad-based (bell-shaped), untinted, short neck,

lip, lid of cork (2nd model

has lid of glass and plastic

(with globe-shaped top)), 250

ml\. (Sample of model with lid

of glass and plastic

provided.)

582 \[2\]

Licorera Pala Alta

\(41\) Short wide (flask-shaped), untinted, neck of

moderate length, lip, lid of

cork (2nd model has lid of

glass and plastic (with globe-shaped top)), 200 ml.

583 \[2\]

Licorera Cuadrada

\(41\) Four sides, untinted,

short neck, lip, lid of cork

(2nd model has lid of glass

and plastic (with globe-shaped

top)), 265 ml. (Sample

provided, broken when received

in this office.)

584/1

Licorera Reloq

Peq. (\"Botella

Reloq Pequena\" in

catalogue)

\(44\) Two sides (rounded

circular shape), green tint

(sample is untinted), short

neck, lip, lid of cork, 125

ml\. (Sample (with different

lid) provided.)

586/1

Botella Pala Baja

Peq.

\(44\) Two wide sides (with

other sides narrow, rounded

edges), green tint (sample is

untinted), short neck, lip,

lid of cork, 125 ml. (Sample

provided.)

657

Bote Trabuco Grde.

\(39\) Cylindrical shape, green

tint, short neck, lip, wide

opening, lid of cork, 130 ml.

702

Bote Cilindrico

(\"Bote Redondo

S/Mini\" in

catalogue)

\(40\) Cylindrical shape, green

tint, short neck, lip, wide

opening, lid of cork, 25 ml.

702/2

Bote Octogonal

S/Mini

\(40\) Octagonal shape, green

tint, short neck, lip, wide

opening, lid of cork, 30 ml.

730

Bote Hexagonal

\(39\) Hexagonal shape (bottom,

top, and four sides form

hexagon, front and back are

flat), green tint, short neck,

lip, wide opening, lid of

cork, 55 ml. (Sample

provided, broken when received

in this office.)

730/2

Bote Gal

\(39\) Ink bottle-like shape,

green tint, short neck, lip,

wide opening, lid of cork, 55

ml\.

764

Bote Ollita

\(39\) Vase shape, 2 small ear-like handles, green tint,

short neck, lip, wide opening,

lid of cork, 35 ml.

775

Vinagera Venecia

\(42\) Cruet shape, 1 handle,

green tint, neck of moderate

length, pouring lip (with

channel), lid of glass and

cork stopper, 225 ml.

784

Botella Fragola

106 cc

\(33\) Four sides, tall, green

tint, neck of moderate length,

lip, lid of cork, 120 ml.

784/2

Botella Piramide

\(33\) Four sides, with sides

diminishing in width upwards,

tall, green tint, neck of

moderate length, lip, lid of

cork, 120 ml.

785 \[2\]

Botella Lagrima

(32, 33) Tear-shape (rounded

broad base, gradually

narrowing to neck), tall,

green tint, neck of moderate

length, lip, lid of cork (2nd

model has lid of glass and

cork (with rounded handle

tapered upwards)), 120 ml.

785/1 \[2\]

Botella Bolas

(32, 33) Conical shape

(diminishing in width upwards,

with sides narrowing and

widening to form 8 balloon-like shapes), tall, green

tint, neck of moderate length,

lip, lid of cork (2nd model

has lid of glass and cork

(with rounded handle tapered

upwards)), 120 ml.

785/2 \[2\]

Botella Conica

(32, 33) Conical shape

(diminishing in width

upwards), tall, green tint,

neck of moderate length, lip,

lid of cork (2nd model has lid

of glass and cork (with

rounded handle tapered

upwards)), 120 ml.

788 \[2\]

Bote Corazon

\(34\) Heart shaped (with flat

base), untinted, short neck,

lip, lid of cork (2nd model

has lid of glass and cork

(with knurl on top)), 225 ml.

(Sample provided, broken when

received in this office.)

789 \[2\]

Botella Piramide

\(33\) Four sides (with sides

diminishing in width upwards),

tall, green tint, short neck,

lip, lid of cork (2nd model

has lid of glass and cork

(with globe shaped handle)),

200 ml.

789/1

Botella Piramide

Vorcida (\"\...

Retorcida\" in

catalogue)

\(33\) Four sides (with sides

diminishing in width upwards

and twisting 1/4 turn), tall,

green tint, short neck, lip,

lid of glass and cork (with

rounded handle tapered

upwards), 200 ml.

1007

Figura Cerdito

Hucha

\(43\) Pig shape, green tint,

oblong opening (similar to a

\"piggy\" bank opening) on top,

500 ml.

2000

Jarra Uvas Griega

(\"\... Grande\" in

catalogue)

\(18\) Pitcher shape (wide base,

narrowing then widening

(grape-like pattern embossing

in wide part) before narrowing

to neck), tall, green tint,

handle, long neck, pouring lip

(with channel), lid of cork,

750 ml.

2002

Botella Naranjas

\(17\) Globe shape tapering to

neck (light embossing), tall,

green tint, long neck, rim,

lid of cork, 750 ml.

2017

Botella Giralda

Sevilla

\(27\) Four sides (embossing to

represent a building on the

sides), tall, green tint, neck

of moderate length (with neck

also of 4 sides), rim, lid of

cork), 800 ml.

2018 \[2\]

Botella Torre

Eiffel

(28, 29) Four sides (with

sides diminishing in width

upwards) in shape of, and with

embossing to represent, the

Eifel Tower, tall, green tint,

long neck, rim, lid of cork

(2nd model has lid of glass

and plastic (with globe shaped

handle)), 800 ml.

2021

Botella Serpiente

\(28\) Conical in shape of, and

with raised work representing,

a serpent, tall, green tint,

long neck (with neck tapering

from serpent shape to

cylindrical shape), rim, lid

of cork, 750 ml. (Sample

provided.)

2030

Botella Tres Bolas

\(17\) Conical shape with sides

narrowing and widening to form

3 balloon-like shapes tapering

to neck, tall, green tint,

neck of moderate length, rim,

lid of cork, 750 ml.

2050

Botella Nervio

\(1\) Conical shape with faint

embossing tapering to neck,

very tall, green tint, long

neck, rim, lid of cork, 500

ml\.

2093 \[2\]

Botella Moscatel

Oro

\(17\) Cylindrical shape, then

gradual tapering to neck with

embossing appearing to

represent grapes, green tint,

long neck, rim, lid of cork

(2nd model has a wire bail and

rubber ring closure system),

750 ml.

2109

Botella Cuello

Desplazado

\(27\) Four sides with neck

rising from side instead of

center, tall, green tint, long

neck, rim, lid of cork, 750

ml\.

3025

Vinagera Sandra

\(42\) Global shape with one

handle, green tint, neck of

moderate length, pouring lip

(with channel), lid of cork,

450 ml. (Sample provided,

handle broken when received in

this office.)

Two entries dated April 17 and 22, 1995, are included in the

protest. The entries were liquidated on September 8, 1995, with

classification under subheading 7013.39.20, HTSUS.

On December 7, 1995, the importer filed the protest. According to the
protest, the protestant does not process or fill

the pieces of glassware; the protestant resells them to

commercial processors which use the glassware as containers and

fill them with one of several products, including dried food,

bath oils or salts, body creams, etc. After the processors fill

the pieces of glassware, the processors sell the products to

retailers or mail-order catalogue houses, which sell the products

to consumers.

The protestant provides sales literature from three of the

protestant\'s commercial purchasers of the glassware, stated to

represent 78% of the protestant\'s sales. The literature of the

first purchaser depicts several of the listed pieces of glassware

(items 2021, described as \"SERPENT JAR \... tall (over 1 foot

high) coiled Italian glass storage jar with cork stopper is

filled with almost 1.5 pounds of ten-bean soup \...\", and 2030,

described as \"THREE BULB ROCK SUGAR CRYSTALS BOTTLE \... over 11\"

high hand-blown, Spanish bottle \[with\] almost 1.5 lbs. of pure

rock candy crystals\[,\] \[b\]eautiful, decorative and useful\").

Although these items and other similar \"speciality\" glass bottles

emphasize the nature of the glass bottle, items in the catalogue

packed in conventional bottles do not (e.g., \"CAJUN SOUP MIX

\[p\]acked inside this 750 ml bottle is a 1.5 pound assortment of

beans \...\"). The literature of the second purchaser concerns

glassware not covered in the protest. The literature of the

third purchaser shows two items (784 and 785 (cork lids), each

filled with massage oil and herbs and decorated with ribbons).

The literature of this purchaser also offers additional, unfilled

bottles, including items 775, 784, 784/2, 785, 785/1, and 785/2.

On the basis of this evidence, the protestant argues that

the containers are \"of a kind\" used to package or convey

products, including food and toilet preparations, and that they

are clearly not glassware used for table, kitchen toilet, office,

indoor decoration or similar purposes. The protestant cites

Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993),

for the proposition that the competing tariff provisions are

\"use\" provisions subject to Additional Note 1(a), HTSUS. The

protestant notes the Harmonized Commodity Description And Coding

System Explanatory Notes (ENs) for headings 7010 and 7013, two

rulings, HQ 957873 dated November 21, 1995, and HQ 956526 dated

July 26, 1994, and T.D. 96-7 in support of its arguments. The

protestant also cites 19 U.S.C. 1504(a) in arguing that those

entries which were liquidated more than one year after entry for

which no notices of extension were issued must be deemed

liquidated as asserted at the time of entry by the importer of

record.

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.

The 1995 general column one rate of duty for goods classifiable

under subheading 7010.90.20 ( \... containers (with or without

their closures) of a kind used for the conveyance or packing of

perfume or other toilet preparations; \...: \[p\]roduced by

automatic machine) is 3.5% ad valorem. Goods classifiable under

subheading 7010.90.50 ( \... \[o\]ther: \... \[o\]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 1995 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 29.2% ad valorem. The 1995 general column

one rate of duty for goods classifiable under subheading

7013.99.40 (\... \[o\]ther glassware: \... \[o\]ther: \... \[o\]ther:
\...

\[o\]ther: \[v\]alued not over \$0.30 each) is 38% ad valorem. The

1995 general column one rate of duty for goods classifiable under

subheading 7013.99.50 (\... \[o\]ther glassware: \... \[o\]ther: \...

\[o\]ther: \... \[o\]ther: \... \[v\]alued over \$0.30 each but not over

\$3 each) is 30% ad valorem.

ISSUE:

Are the pieces of glassware described in the FACTS

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 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)). As for the

protestant\'s argument that entries which were liquidated more

than one year after entry for which no notices of extension were

issued must be \"deemed\" liquidated as asserted under 19 U.S.C.

1504(a), that argument is inapplicable to the protested entries

(because liquidation of the two protested entries was within 1

year of the date of entry).

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 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, 969 F. Supp.

66 (CIT 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).

Except in regard to items 394/1 and the model of item 2093

with a wire bail and rubber ring closure system (addressed

below), the 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\. According to the \"EFFECTIVE DATE\" section of T.D. 96-7,

\"\[a\]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 protested entries

were prior to February 2, 1996. However, insofar as the criteria

described in T.D. 96-7 for indicating whether glassware qualifies

as part of the class of containers used for the conveyance or

packing of goods or for table or kitchen purposes as glass

storage articles are concerned, those criteria were compiled from

Court decisions, ENs, and rulings in existence prior to the

effective date of the T.D. (e.g., the criteria in the T.D. for

glassware of a kind used for table or kitchen purposes; glass

storage articles, were used in HQs 953952, dated September 21,

1994, and 956470, dated September 28, 1994). Therefore, the

criteria in T.D. 96-7 are relevant for determining the

classification of the glassware under consideration.

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

(except item 394/1 and the model of item 2093 with a wire bail

and rubber ring closure system, addressed separately below) is as

follows. The first criterion is inconclusive; some, but not all,

items have large openings and/or short or no necks, most have

lips or flanges (but they are merely raised and are not

configured to \"hold\" a lid or cap, other than a cork or similar

closure), all are made of ordinary glass and are stated to be

manufactured by automatic machines. An ultimate purchaser\'s

primary expectation would not be to discard or recycle the

container after the conveyed or packed goods are used, as

evidenced by the fact that the protestant\'s evidence shows many

of the containers offered for sale empty; further, the lids allow

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

indicating reusability. The protestant states that the

containers are sold from the importer to a wholesaler/distributor

who then packs the container with goods, but the evidence

provided by the protestant demonstrates the sale of the

containers empty; further, many of the containers are of a kind

sold to the ultimate purchaser empty (in this regard we note

that, as emphasized above, the competing tariff provisions are

principal use provisions, not actual use provisions). The

evidence provided by the protestant shows that the container is

emphasized over the goods packed in the container. 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 evidence available is that rather than using the

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

container after its initial use, the containers are offered for

sale empty, the ease of opening and closing the containers makes

them very reusable, and the containers, and not their contents,

are emphasized to customers. On the basis of these criteria, we

conclude that each of items described in the FACTS, except for

item 394/1 and the model of item 2093 with a wire bail and rubber

ring closure system, is not principally used for the conveyance

or packing of goods. Classification under heading 7010 is

precluded.

Items 394/1 and the model of item 2093 with a wire bail and

rubber ring closure system are classifiable in accordance with

Myers v. United States, supra. That case dealt with the

\"preserving jars of glass\" provision in heading 7010, as applied

to certain jars with wire bail and rubber ring closure systems.

Finding the tariff term \"preserving jars of glass\" in heading

7010, HTSUS, to be an eo nomine provision, the Court held that

the jars (with wire bail and rubber ring closure systems) were

classified under that heading. 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.

We have ruled that jars such as those under consideration

are classified under subheading 7013.39.20, HTSUS (see HQs

953282, 088020, 951721, 956470, 953952 and T.D. 96-7). However,

based on Myers and the criteria therein, we conclude that items

394/1 and the model of item 2093 with a wire bail and rubber ring

closure system are described in the eo nomine provision

\"preserving jars of glass\" in heading 7010, HTSUS. Accordingly,

we must follow Myers in this protest. Items 394/1 and the model

of item 2093 with a wire bail and rubber ring closure system are

classified under subheading 7010.90.50, HTSUS. The other

containers in this case do not meet the criteria in Myers and are

not \"preserving jars of glass.\"

The remaining items are classified under heading 7013.

Items 333, 333/2, 333/3, 581, 582, 586/1, 657, 784, 784/2, 785,

785/1, 785/2, 789, and 789/1 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.

Items 775 and 3025 are cruets, item 2000 is a pitcher, and

items 2002, 2017, 2018, 2021, 2030, 2050, 2093 (the model with a

cork lid), and 2109 are large decorative bottles. Items 775,

3025, and 2000 are clearly principally used to store food

material (see EN 70.13, which incudes \"pitchers\" and \"oil or

vinegar cruets\" among the exemplars listed as being covered by

heading 7013 under table or kitchen glassware). Items 2002,

2017, 2018, 2021, 2030, 2050, 2093 (the model with a cork lid),

and 2109 are of a kind principally used for table or kitchen

purposes (see EN 70.13, which includes \"decanters\" (\"decanter\" is

defined as \"a decorative glass bottle, generally with a stopper,

from which wine, etc. is served after being decanted\" (Webster\'s

New World Dictionary (3rd Coll. Ed.) (1988), p. 356)) and \"jugs\"

among the exemplars listed as being covered by heading 7013 under

table or kitchen glassware). They 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.

Items 394, 444, 578, 702, 702/2, 730, 730/2, and 764 are

very small decorative bottles, items 583 and 584/1 are small

decorative bottles, and items 788 and 1007 are bottles shaped to

represent a pig or a heart. Each of items 394, 444, 578, 583,

584/1, 702, and 702/2 could conceivably be used to store food

material or for toilet decoration or similar purposes (see EN

70.13, which includes \"perfume bottles\" among the exemplars

covered by heading 7013 under toilet articles). In our opinion,

these items are principally used for the latter; however, for the

reason stated in the parenthetical sentence at the end of this

paragraph, definitive classification under subheading 7013.39 or

7013.99 is not necessary for decision of this protest). We

conclude that items 730, 730/2, and 764 are of a kind principally

used for office decoration or similar purposes (see EN 70.13,

which includes \"paperweights\", \"inkwells\", and \"containers for

pins\" among the exemplars covered by heading 7013 under office

glassware). We conclude that items 788 and 1007 are of a kind

principally used for indoor decoration or similar purposes (see

EN 70.13, which includes \"fancy articles (animals, flowers,

foliage, fruit, etc.)\" among the exemplars covered by heading

7013 under glassware for indoor decoration). These items are

classifiable as other glassware, other, other, other, in

subheading 7013.99.40 or 7013.99.50, HTSUS, depending on value.

(Because these items were liquidated with classification in

subheading 7013.39.20, HTSUS, with a rate of duty less than the

rates of duty for subheading 7013.99.40 or 7013.99.50, this

determination has no effect on the liquidated classification.)

The two rulings cited by the protestant are distinguished

from this case. In the case of HQ 956526 dated July 26, 1994, as

stated in the ruling, the evidence indicated that the containers

are used to commercially convey food stuffs to a consumer and the

lack of decoration or uncommon lid indicated that the jars were

of a kind which would be discarded by the consumer when emptied.

Furthermore, a review of the file for HQ 956526 shows that the

jars were low-cost (\$.055 to \$.15 each) jars with twist-on and

off covers designed for use in the hot pack process. Thus, the

containers in HQ 956526 differ from the containers in this case

in important aspects, aspects which are elements of 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 described above.

In the case of HQ 957873 dated November 21, 1995, the jars were

created from unique specifications created specifically for the

importer\'s bath products and importer was the only importer of

the jar. That is, as stated in HQ 957873, \"the containers do not

pass through any other channel of trade, nor are they sold in any

other manner.\" Thus containers in HQ 957873 are, as stated in

the ruling \"principally used for the conveyance or packing of

perfume or other toilet preparations\[.\]\"

HOLDING:

The pieces of glassware described in the FACTS (except for

items 394/1 and the model of item 2093 with a wire bail and

rubber ring closure system) are not containers of a kind used for

the conveyance or packing of goods and are classifiable under

heading 7013. Items 333, 333/2, 333/3, 581, 582, 586/1, 657,

775, 784, 784/2, 785, 785/1, 785/2, 789, 789/1, 2000, 2002, 2017,

2018, 2021, 2030, 2050, 2093 (the model with a cork lid), 2109,

and 3025) are classifiable in subheading 7013.39.20, HTSUS.

Items 394, 444, 578, 583, 584/1, 702, 702/2, 730, 730/2, 764,

788, and 1007 are classifiable in subheading 7013.99.40 or

7013.99.50, HTSUS (depending on value) (because these items were

liquidated with classification in subheading 7013.39.20, HTSUS,

with a rate of duty less than the rates of duty for subheading

7013.99.40 or 7013.99.50, this determination has no effect on the

liquidated classification). Items 394/1 and the model of item

2093 with a wire bail and rubber ring closure are preserving jars

of glass and are classifiable under heading 7010 in subheading

7010.90.50, HTSUS (Myers v. United States, 969 F. Supp. 66 (CIT

1997)).

The protest is GRANTED IN PART (as to items 394/1 and the

model of item 2093 with a wire bail and rubber ring closure

system) and DENIED IN PART (as to all other items). 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