HQ 959942

October 27, 1997

CLA-2 RR:CR:GC 959942 PH

CATEGORY: Classification

TARIFF NO.: 7010.92.50; 7013.39.20

Port Director

U.S. Customs Service

33 New Montgomery Street, \# 1501

San Francisco, CA 94105

RE: Protest 2809-96-101231; various glass containers; conveyance

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

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

storage articles; principal use; eo nominee; 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); 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); HRLs 959639; 959941; untimely

protest; 19 U.S.C. 1514(c)(3)(A); 19 CFR 174.12(e); Myers v.

United States, CIT Slip Op. 97-75; Penrod Drilling Co. v. United

States, 13 CIT 1005, 727 F. Supp. 1463 (1989), rehearing

dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed.

Cir. (T) 60, 925 F. 2d 406 (1991)

Dear Port Director:

This is in response to Protest 2809-96-101231, 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 consists of the following glassware:

Item B3589 (Sole 500 \[ml.\]), a tall, narrow (elongated)

article with a cylindrical shape the diameter of which, at

the top of the cylindrical portion, gradually diminishes to

a neck, a long narrow neck, small opening, and a rim; and

Item 05179 (Bellissima 500 \[ml.\]), a tall, narrow

(elongated) article with a cylindrical shape (the

cylindrical portion of this item is longer than that of item

B3589) the diameter of which, at the top of the cylindrical

portion, diminishes to a neck, a long narrow neck, small

opening, and a rim.

Glassware under the two December 28, 1995, entries and the

January 4, 1996, entries is not described because the protest was

untimely as to those entries (see below) (for future reference,

classification of items in the untimely protested entries should

be in accordance with HRLs 959639, dated October 21, 1997, HRL

959941, dated October 27, 1996, and this ruling). Information is

available only on the described glassware; based on the entry

documentation in the file for one of the December 28, 1995

entries (\... 490-2), other glassware may have been imported under

the protested entries and may have been liquidated under

subheading 7010.91.50 or 7010.92.50, HTSUS, free of duty; this

ruling does not address whether the classification of such items

was correct.

Four entries, of December 28, 1995, through January 7, 1996,

are included in the protest. The first three entries (two of

December 28, 1995, and one of January 4, 1996) were liquidated on

June 14, 1996, and the other entry (of January 7, 1996) was

liquidated on June 21, 1996.

On September 13, 1996, the importer protested, stating in

block 9 of the protest form (\"DETAILED REASONS FOR PROTEST AND/OR

FURTHER REVIEW\"):

We respectfully request a full duty refund for all glassware

classified at 7013. I request all merchandise classified at

7013 be reclassified at 7010/duty free. \...

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. \...

Further review was requested and granted.

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 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:

Was the protest timely and, if timely, is the glassware

classifiable as 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 as to the two December 28, 1995,

entries and the January 4, 1996, entry, the protest was untimely

(i.e., protest must be filed within 90 days after but not before

the notice of liquidation (19 U.S.C. 1514(c)(3)(A); 19 CFR

174.12(e)); notice of liquidation was dated June 14, 1996, and

the protest was filed September 13, 1996, 91 days after the

notice of liquidation (16 days in June, 31 days in July, 31 days

in August, and 13 days in September)). For an example of the

judicial treatment of a protest filed 1 day after the 90-day

period for filing a protest, see Penrod Drilling Co. v. United

States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14

CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60,

925 F. 2d 406 (1991). The protest must be denied as to these

entries. As to the January 7, 1996, entry (liquidated June 21,

1996), the protest was timely (see above) 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 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, CIT Slip Op.

97-75, decided June 17, 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).

The provision for preserving jars of glass in heading 7010

was considered in Myers, supra. That case concerned jars with

wire bail and rubber ring closure systems. The Court found the

jars to be classifiable under the provision for \"preserving jars

of glass\" in heading 7010. 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.

In this case, the glass containers have no ability to form

and maintain a hermetic seal, nor is there any indication that

the containers have potential for reuse as canning or preserving

jars (the pictorial representations are not clear enough to

indicate whether the containers are composed of thick glass).

The containers in this case are not \"preserving jars of glass\"

and may not be classified under that provision.

The other 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 cases, 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 HRLs 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

is as follows. Both articles appear to be manufactured by

automatic machines from ordinary glass. Both articles are

elongated bottles with small openings, long necks and, although

they have rims, are not configured to \"hold\" a lid or cap, other

than a cork or similar closure. 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 each item 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 the elongated

shape of the bottles. The protestant states that the containers

are sold from the importer to a customer who fills them (as

emphasized above, 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 (see above)

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 these articles are not

principally used for the conveyance or packing of goods.

Classification under heading 7010 is precluded.

Both articles are classified under heading 7013. 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 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\"). Accordingly, items B3589 and 05179 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.

HOLDINGS:

\(1\) The protest was untimely as to the two December 28,

1995, entries and the January 4, 1996 entry (19 U.S.C.

1514(c)(3)(A); 19 CR 174.12(e)).

\(2\) Items B3589 and 05179 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 (as to the two December 28, 1995

entries and the January 4, 1996, entry, due to untimely filing).

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