HQ 961409

October 22, 1998

CLA-2 RR:CR:GC 961409 PH

CATEGORY: Classification

TARIFF NO.: 7010.91.50; 7013.39.20

Port Director

U.S. Customs Service

33 New Montgomery Street, \# 1501

San Francisco, CA 94105

RE: Protest 2809-97-101371; glassware; conveyance or packing of

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

decoration; household storage articles; principal use; 7010;

7013; 7020; 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; HQs 959639; 959941; 961395

Dear Port Director:

This is in response to protest 2809-97-101371, 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

examination.

FACTS:

One entry, dated February 14, 1997, is included in the

protest, which is against the classification of three styles of

glassware, \# 03763, 05379, and 06065, described in the following

table.

Code/Ref.

Denomination

Description

03763

Bott. Duca

500 F

Four sides, tall, long neck, rim.

Protestant states that the article is

used to pack olive oil.

06065

Bott. Tromba

750 BP MB

Conical shape in the form of a

trumpet or horn, with a handle and

\"mock finger tabs\", rim. Protestant

states that the article is purchased

by a bottler of brandy.

05379

Bott. MG

Bord

Francese Lt

6 S

Cylindrical shape (typical wine-bottle shape), moderate length neck,

rim, has a \"punt\" (or \"push-up

bottom\"), as in a typical wine

bottle. Protestant states that the

article is filled with wine.

The entry was liquidated on September 19, 1997. Item \#

03763 and 06065 were classified in subheading 7013.39.20, HTSUS,

and item \# 05379 was classified in subheading 7020.00.60, HTSUS.

On December 18, 1997, 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 bottle 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 there are many

types of foods and beverages that do not require the type of

hermetic seal created by the hot packing process, such as wine,

vinegars, and olive oil infusion-type products, as well as dry

goods and non-food items. 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 wineries or

food processors which fill them with wine or food products, they

are never sold empty directly to the consumer, they are

ultimately displayed and sold in an environment that features the

wine or food in the container and not the container, they are

used commercially to convey beverages or food, they are

recognized in the trade as used primarily to pack and convey wine

to a consumer and, in particular regard to item \# 06065, are

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

attempt to increase sales, and they are only reusable in the same

manner as any other glass container in which food products are

packed and marketed.

The HTSUS headings under consideration, are as follows:

7010: 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.

Goods classifiable under subheading 7010.91.50 (\"\... \[o\]ther, of

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

without their closures)\"), or 7010.92.50 (\"\... \[o\]ther, of a

capacity: \... \[e\]xceeding 0.33 liter but not exceeding 1 liter:

\... \[o\]ther containers (with or without their closures)\") receive

duty-free treatment.

7013: Glassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018).

The 1997 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 27.8% ad valorem. The 1997 general column one

rate of duty for goods classifiable under subheading 7013.39.60

(\"\... \[g\]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 over \$3 each: \...
\[o\]ther: \...

\[v\]alued over \$5 each\") is 7.2% ad valorem.

7020: Other articles of glass

The 1997 general column one rate of duty for goods classifiable

under subheading 7020.00.60 (\"\... \[o\]ther\") is 5.6% ad valorem.

ISSUE:

Whether the glassware is classifiable as containers of a

kind used for the conveyance or packing of goods under heading

7010, HTSUS, glassware of a kind used for table, kitchen, toilet,

office, indoor decoration or similar purposes under heading 7013,

HTSUS, or other articles of glass under heading 7020, 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).

Subheading 7020.00.60, HTSUS, is a so-called \"basket\"

provision, in which classification \"is appropriate only when

there is no tariff category that covers the merchandise more

specifically\" (Apex Universal, Inc., v. United States, CIT Slip

Op. 98-69 (May 21, 1988)). Therefore, we are first addressing

the other competing provisions. Only if classification in these

provisions is precluded will we address classification in

subheading 7020.00.00, HTSUS.

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. Each of the articles appears to have been

manufactured by automatic machines from ordinary glass. Each

article has a relatively small opening and is not configured to

\"hold\" a lid or cap, other than having a rim with which a cork or

similar closure may be used. Each item has a long or moderately

long neck (item \# 06065, because of its unique shape, does not

have a neck as such, but the portion of the article leading to

the opening is similar to a relatively long neck).

In the case of item \# 05379, the article is similar in shape

to an ordinary wine bottle and has a \"punt\" (or \"push-up\" bottom)

as is typical of such containers. The protestant states that the

container is sold from the importer to a winery which fills it,

as its physical shape indicates, with wine. There is no evidence

as to whether the container is emphasized over the goods packed

in it, but the physical form of the article (see above) indicates

that this is not 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 it is used to pack and

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

On the basis of these criteria (in particular, the physical shape

of the article, including the \"punt\"), we conclude that item \#

05379 is of the class or kind of goods principally used for the

conveyance or packing of goods. The article is properly

classified under heading 7010, HTSUS, and, therefore, may not be

classified under heading 7013, HTSUS, as specifically provided in

heading 7013. Item \# 05379 is classifiable as a container of

glass of a kind used for the conveyance or packing of goods in

subheading 7010.91.50, HTSUS.

This classification of item \# 05379 is consistent with

Headquarters Ruling (HQ) 959941 dated October 27, 1997 (see item

\# B4300 in that ruling). We note that HQ 959639 dated October

21, 1997, held certain large containers (2 to 6 liters), one of

which had a style number and denomination similar to item \#

05379, to be classifiable under heading 7013, HTSUS. However,

there is no evidence in HQ 959639, or the file therefore, that

the containers involved therein had the shape of an ordinary wine

bottle and, in particular, there is no evidence that those

containers had a \"punt\". This ruling is distinguished from HQ

959639 on that basis.

Insofar as item \# 03763 and 06065 are concerned, 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 decorative shape of each item

(trumpet or horn shape for item \# 06065; geometric shape and long

neck for item \# 03763). This is also evidence by the fact that

each item is configured only for a cork or similar closure, and

such closures 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 customer who fills them, but there is no evidence

as to whether this is so for the class or kind involved (we

emphasize, as stated above, 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

(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 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 containers to pack

and convey goods to a consumer who discards them after their

initial use, the containers, and not their contents, are

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

conclude that item \# 03763 and 06065 are not principally used for

the conveyance or packing of goods. Classification under heading

7010, HTSUS, is precluded.

Item \# 03763 and 06065 are 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 household storage articles (see above, e.g.,

closures allow for repetitive, extremely easy, opening and

closing; when sold filled, the decorative 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, these items 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, in subheading 7013.39.20, HTSUS.

Insofar as the protestant\'s arguments on the basis of EN

70.10 and Kraft, supra, are concerned, see HQ 961395 dated

October 20, 1998, addressing similar arguments made by the same

protestant in regard to another protest.

HOLDINGS:

\(1\) Item \# 05379 is classifiable as an other bottle of glass

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

capacity exceeding 1 liter, in subheading 7010.91.50, HTSUS.

\(2\) Item \# 03763 and 06065 are classifiable as other

glassware of a kind used for table (other than drinking glasses)

or kitchen purposes, in subheading 7013.39.20, HTSUS.

The protest is GRANTED IN PART (as to item \# 05379) and

DENIED in part (as to item \# 03763 and 06065). 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