HQ 959638

October 10, 1997

CLA-2 RR:CR:GC 959638 PH

CATEGORY: Classification

TARIFF NO.: 7013.39.20; 7013.39.50

Port Director

U.S. Customs Service

200 St. Paul Place

Baltimore, MD 21202

RE: Protest 1303-96-100144; glass containers; triangle jar with

cork lid; conveyance or packing of goods; preserving jars of

glass; glassware for table or kitchen decoration; household glass

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); 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 087779; 953952

Dear Port Director:

This is in response to Protest 1303-96-100144, which

pertains to the tariff classification of certain triangle jars of

glass with cork lids under the Harmonized Tariff Schedule of the

United States (HTSUS). A sample was submitted for our review.

FACTS:

The merchandise under protest consists of a 3-sided glass

jar (so that the bottom of the jar forms a triangle), invoiced as

\"10 \[INCH\] TRIANGLE JARS WITH CORK\" (although not described by

the protestant, one of the protested entries is for \"23 \[INCH\] 12

SIDED JAR GREEN/BLUE WITH CORKS\"). The sides of the 10 inch

triangle jars are approximately 8 « by 3 « inches. The jar has a

round opening (approximately 1 3/4 inches in diameter) with a

slightly raised rim. The lid is of cork. The glass is quite

heavy and has a turquoise tint. According to the invoices in the

file, the jars are imported empty with the corks. No evidence is

provided as to the use of these particular jars, although the

importer is \"\[\...\] House of Nuts\". Value, according to the

invoices, was \$.61 for all but two of the entries. In the case

of the other entry of jars meeting the above description, the

invoiced value was \$.72. In the case of the jar invoiced as a 23

inch jar with 12 sides, the invoiced value was \$4.85.

Seven entries of merchandise are included in the protest.

The dates of entry are between September 8 and October 12, 1995.

According to the entry summaries, the importer classified the

merchandise under subheading 7010.90.50, HTSUS. The entries were

liquidated on February 16, 1996, with classification under

subheading 7013.39.20, HTSUS (except for the entry with 23 inch

12-sided jars, in which case classification was under subheading

7013.39.50, HTSUS).

On March 20, 1996, the importer filed the protest contending

that glassware of the type in the protested entries has \"\...

traditionally been entered and liquidated under \[subheading\]

7010.90.5050, \[HTSUS,\] free of duty.\" The protestant cites

Treasury Decision (T.D.) 96-7, which it states \"\... \[made\] the

imported goods subject to duty under \[subheadings\] 7013.39.2000

and 7013.39.5000 \...\" The protestant argues that since T.D. 96-7

was effective regarding merchandise entered for consumption or

withdrawn from a warehouse for consumption on or after February

2, 1996, and since the protested entries were entered for

consumption prior to this date, the entries should be

reliquidated, with classification as entered.

The competing subheadings, as of the time under

consideration, are as follows:

7010.90.50: \[c\]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: \... \[o\]ther containers (with or

without their closures.

Goods classifiable under subheading 7010.90.50 receive duty-free

treatment.

7013.39 \[g\]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.

The 1995 general column one rate of duty for goods classifiable

under subheading 7013.39.20 (\... \[v\]alued not over \$3 each) is

29.2% ad valorem. The 1995 general column one rate of duty for

goods classifiable under subheading 7013.39.50 (\... \[o\]ther:

\[v\]alued over \$3 but not over \$5) is 15% ad valorem.

ISSUE:

Are the 10 inch triangle jars and 23 inch 12-sided jars,

each with cork lids, 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 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 that 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).

Protestant\'s contention that this merchandise would have

been classified under subheading 7010.90.50, HTSUS, before T.D.

96-7 is concerned is incorrect. See, e.g., 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 handle that was 12 3/4 inches tall and a round glass storage

jar with a cork stopper style cover that was 12 inches tall under

subheading 7013.39.20, HTSUS (see also, HRL 953952, dated

September 22, 1994, and the rulings cited therein). The jars in

HRL 087779 are similar to the merchandise in this case in all

material respects.

Under \"EFFECTIVE DATE\" in T.D. 96-7, it is stated that

\"\[a\]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\"). As shown above, the

tariff classification of the protested merchandise was in

accordance with Customs rulings prior to T.D. 96-7 and the T.D.

did not result in any changes in tariff classification for the

merchandise.

In this case, the competing headings are 7010 and 7013,

HTSUS. Heading 7010, HTSUS, provides for glass containers of a

kind used for the conveyance or packing of goods, preserving jars

of glass, and certain closures. Heading 7013, HTSUS, provides

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

indoor decoration or similar purposes, not including glassware

covered in heading 7010.

The provision for preserving jars of glass in heading 7010,

HTSUS, is an eo nomine provision (Myers v. United States, CIT

Slip Op. 97-75, decided June 17, 1997). The provision in heading

7010, HTSUS, \"of a kind used\" for the conveyance or packing of

goods is a \"principal use\" provision (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 certain 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, HTSUS. 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, although the walls of the jars are composed of

thick glass, the jar has no ability to form and maintain a

hermetic seal, nor is there any indication that the jar has

potential for reuse as a canning or preserving jar. The jars 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.

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, 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. 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),

HTSUS, 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.

The classification of the jars considered in HRL 087779

(referred to above) was on the above basis. The ruling states:

\"The jars at issue are not used commercially. \... They are

household jars that are used as canisters in the kitchen to

hold various types of food. \...

Similarly, the jars in this case are of a kind used (i.e.,

principally used) for table or kitchen purposes, i.e., household

storage articles, and not as \"\... containers of the kind commonly

used commercially for the conveyance or packing of liquids or of

solid products\" (EN 70.10). The jars 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

(the 23 inch jar with 12 sides, with an invoice value greater

than \$3 but not over \$5, is classifiable in subheading

7013.39.50, HTSUS).

HOLDING:

The pieces of glassware described in the FACTS (10 inch

triangle jars and 23 inch 12-sided jars, each with cork lids) are

classifiable as glassware of a kind used for table (other than

drinking glasses) or kitchen purposes, in subheading 7013.39.20

or 7013.39.50, HTSUS, depending on value.

The protest is DENIED. 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