HQ 959044

July 24, 1996

CLA-2 RR:TC:MM 959044 MMC

CATEGORY: Classification

TARIFF NO.: 7013.39

Port Director

U.S. Customs Service

35 West Service Road

Champlain, NY 12919

RE: Protest 0712-94-101251; Glass ceramic cap and bail and trigger

closure bottles; T.D. 96-7, 61 Fed. Reg. 223,229 (January 3,

1996); Group Italglass v. U.S., G. Heilman Brewing Co. v.

U.S., U.S. v. Carborundum, Kraft Inc. v. U.S.; HRL 957960

Dear Port Director:

The following is our response to Protest 0712-94-101251

concerning your actions in classifying and assessing duty on

ceramic cap bail and trigger closure bottles , under the Harmonized

Tariff Schedule of the United States (HTSUS). Samples of the two

jars at issue were submitted for our review. In preparing this

ruling, consideration was given to supplemental submissions

received pursuant to a February 29, 1996, meeting between

protestant and Edward Symczak, Supervisory Import Specialist

(Boston).

FACTS:

The protested models are referred to by protestant as \"Siphon\"

and \"Palla\". Both have ceramic cap closures with wire bails and

are sold in a variety of sizes. Palla has a ball-shaped body which

tapers into a long, narrow neck. Siphon has a rounded, oblong

shaped body, a portion of which is molded into a handle. At the

top of the handle, the body tapers into a short, wide, neck.

The protestant, Chelsea Bottle Company, is a wholesale

distributor of glass and plastic containers and jars. According to

the submissions, their customers include, but are not limited to,

food, chemical, health/ beauty aid and pharmaceutical packers.

Protestant states that the subject jars are used by one of their

customers to package maple syrup.

A June 1993, article entitled Maple Syrup Gets New Glamor from

Glass which appeared in Packaging Digest magazine was included in

protestant\'s submission. In that article, protestant\'s customer

remarks that tins and plastic jugs are the \"traditional containers

that his company has filled and sold for years\" and that \"\...\[t\]he

bottles stimulate people to try the products. Later, they may buy

our products in a less expensive package. We\'re confident our

product is exceptional, so we\'re looking for exposure in stores

that might already have a conventional package.\" Additionally, the

article states that protestant\'s customer \"points out that these

bottles are far more than just packages. He calls them \"reusable\"

glass because they\'re very similar to what many people buy empty

for decorative purposes. That\'s why he\'s confident these bottles

are rarely discarded after the contents have been consumed.\"

Finally, protestant asserts the exact same jars are being

imported by their Canadian competitors and classified by the

Canadian customs administration (Revenue Canada) as containers of a

kind used for the conveyance or packing of goods. Once filled with

maple syrup in Canada, the entire product, jars and syrup, are

being imported into the United States and competing with the U.S.

produced syrup.

Protestant entered the ceramic cap bail and trigger closure

jars under heading 7010, HTSUS. The entries were liquidated on

August 28, 1994, under heading 7013, HTSUS. A protest was timely

filed on November 9, 1994. The 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

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

office, indoor decoration or similar purposes (other

than that of heading 7010 or 7018):

ISSUE:

Are the ceramic cap bail and trigger closure jars

classifiable as glass containers of a kind used for the

conveyance or packing of goods, or as glassware of a kind used

for table, kitchen, toilet, office, indoor decoration or similar

purposes?

LAW AND ANALYSIS:

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. Protestant

suggests that heading 7010, HTSUS, which provides, in pertinent

part, for containers of a kind used for the conveyance or

packing of goods, describes the jars. We disagree.

Both headings 7010 and 7013, are use provisions. There are

two principal types of classification by use:

\(1\) according to the actual use of the imported article; and

\(2\) according to the use of the class or kind of goods to

which the imported article belongs.

Use according to the class or kind of goods to which the imported

article belongs is more prevalent in the tariff schedule. A few

tariff provisions expressly state that classification is based on

the use of the class or kind of goods to which the imported

article belongs. In Group Italglass U.S.A. v. U.S., USITR, 17

CIT \_\_\_\_, Slip Op. 93-46 (Mar. 29, 1993), the CIT held that: \"the

language in heading 7010, \"of a kind used for\" explicitly

invokes use as a criterion for classification and in heading

7010, principal use is controlling.\" As headings 7010 and 7013

contain the language \"of a kind used for\" the principal use of a

particular article will determine whether it belongs to one of

the classes or kinds described by heading 7010, or heading 7013.

When an article is classifiable according to the use of the

class or kind of goods to which it belongs, 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 U.S. 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 at the time of importation determines

whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS,

provides general criteria for discerning the principal use of an

article, it does not provide specific criteria for individual

tariff provisions. However, the U.S. Court of International

Trade (CIT) has provided factors, which are indicative but not

conclusive, to apply when determining whether particular

merchandise falls within a 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. U.S., USITR, 16 CIT 483, (June

24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. U.S.,

USITR, 14 CIT 614 (Sept. 6, 1990); and U.S. v. Carborundum

Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert.

denied, 429 U.S. 979.

Because both headings 7010 and 7013 are use provisions,

Additional U.S. Rule of Interpretation 1(a), HTSUS, applies.

This necessitates the application of the Kraft characteristics to

the subject glassware. Application of the characteristics will

determine to which class or kind the articles belong; glass

storage articles or packing or conveying containers. As a

general rule, a glass article\'s physical form will indicate its

principal use and thus to what class or kind it belongs. Should,

however, an exception arise and 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. Customs

is of the opinion that the physical characteristics of the

subject articles, as well as the expectations of the ultimate

purchaser, and their environment of sale, prevents the jars from

being described by heading 7010. For a detailed explanation of

the indicative characteristics of the classes \"glass containers

of a kind used for the conveyance and packing of goods\" and

\"glass storage articles\" see, T.D. 96-7, 61 Fed. Reg. 223,229

(January 3, 1996).

There are several distinguishing features between the

\"containing\" articles of heading 7010 and the jars in this case.

The protestant\'s customer states that tins and plastic jugs, not

glass ceramic cap bail and trigger closure bottles, are the

containers traditionally or usually used to convey and package

maple syrup. The jars are of a dimension similar to, and have

the capacity to hold the sort of items typically stored or

transported in jars described by the class or kind \" glass

storage jars\". The subject articles, while not by this

importer, are nonetheless sold empty in the retail market (e.g:

Crate and Barrel, Lechters, etc.). Protestant\'s customer

indicates in the June 1993 article that the ultimate purchaser

chooses the syrup in the glass jars because of the glass jars\'

storage and decorative characteristics, not necessarily because

of the syrup. Finally, protestant\'s customer indicates that the

bottles are far more than \"just\" packages. He calls them

\"reusable glass because they\'re very similar to what many people

buy empty for decorative purposes. \[That\'s why he\'s\] confident

these bottles are rarely discarded after the contents have been

consumed\" (italics added).

While the jars do have knurling and mold seams, these

physical characteristics indicate that the jars may have

commercial conveyance and packing as one of their uses. However,

as evidenced by the information above, these jars are not the

usual commercial syrup container, are sold empty to ultimate

purchasers and are considered \"much more than packages\" by the

bottler. This indicates that the jars are principally used as

glass storage articles. As such, they are classifiable in

heading 7013.

GRI 6 provides that for legal purposes, the classification

of goods in the subheadings of a heading shall be determined

according to the terms of those subheadings and any related

subheading notes and, mutatis mutandis, to the above rules, on

the understanding that only subheadings at the same level are

comparable. For the purposes of this rule, the relative section,

chapter and subchapter notes also apply, unless the context

otherwise requires.

Subheading 7013.39 provides for glassware of a kind used for

table, kitchen, toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or 7018): Glassware of

a kind used for table (other than drinking glasses) or kitchen

purposes other than that of glass-ceramics: Other, and describes

the subject articles. Classification to the 8 digit level will

depend upon the value of the jars.

Finally, we note protestant asserts that the exact same jars

are being imported by their Canadian competitors and classified

by Revenue Canada as containers of a kind used for the conveyance

or packing of goods and that maple syrup bottled in Canada in the

same jars is then imported without duty charged into the U.S. to

compete against the American made syrup. Protestant has not

provided any evidence which indicates Revenue Canada has

implemented the alleged position. Even if such evidence exists,

U.S. Customs would not be bound by the Revenue Canada practice.

See: T.D. 89-80 (1989), 54 FR 35127; Sturm, Ruth, Customs Law and

Administration, Vol. 2., §50.4, p. 24. Bottles imported

together with syrup, or any other article is generally considered

a composite good with the bottled article providing the essential

character. Therefore, it is possible that the composite good is

classifiable as \"syrup\". However, see Headquarters Ruling

Letter 957960 dated February 5, 1996, which held that foodstuffs

may not impart the essential character of composite goods

imported in glass receptacles belonging to the class \"house hold

storage articles\". See also, § 516, Tariff Act of 1930, as

amended (19 U.S.C. 1516), and Part 175, Customs Regulations (19

CFR Part 175), which provides a procedure for domestic interested

parties to discover the classification of imported articles

similar to the class or kind of merchandise they produce and to

contest the classification if they believe the determination is

incorrect.

HOLDING:

The protest should be DENIED. The glass jars are

classifiable under subheading 7013.39, HTSUS, as glassware of a

kind used for table, kitchen, toilet, office, indoor decoration

or similar purposes (other than that of heading 7010 or 7018)

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

or kitchen purposes other than that of glass-ceramics: Other.

Classification to the 8 digit level will depend upon the value of

the jars.

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 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 this decision

must be accomplished prior to the mailing of the decision. Sixty

days from the date of this 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 to

the public via the Diskette Subscription Service, Freedom of

Information Act and other public access channels.

Sincerely,

John Durant, Director

Tariff Classification and

Appeals Division