HQ 955980

July 26, 1994

CLA-2 CO:R:C:M 955980 MMC

CATEGORY: Classification

TARIFF NO.: 7010.90.50

District Director

U.S. Customs Service

1000 2nd Ave.

Room 2200

Seattle, WA 98104

RE: Protest 3001-93-100580; Multi-faceted \"banjo\" oval flask and

long neck hexagon shaped glass containers; U.S. Additional Note

1(a); EN 70.10; HRL 087359

Dear District Director:

The following is our decision regarding the request for

further review of Protest 3001-93-100580, concerning your action

in classifying and assessing duty on two styles of glass

containers (multi-faceted \"banjo\" oval flask and long neck

hexagon shaped sauce jars) under the Harmonized Tariff Schedule

of the United States (HTSUS). A sample of each was submitted for

our review.

FACTS:

The 250 ml (8oz.) glass containers in question are described

as RP-202 (GC- 170) multi-faceted \"banjo\" oval flask and long

neck hexagon shaped sauce jars. Protestant states that they are

made of ordinary disposable recyclable glass, have standard glass

industry finishes and were produced by an Automated Individual

Section Container Forming Machine, which uses a variety of stock

molds to produce the containers by pressure and blown compressed

air.

He further states that the containers are sold by the

importer to various distributors who then sell the containers to

food packers. The food packers exclusively use the containers to

package, convey, market and sell salad dressings, jams, jellies,

honey, mustards, salsa and other food products. The containers,

which range in price between twelve and fourteen cents each, are

not sold to household consumers until filled.

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 \[g\]lassware of a kind used for table, kitchen, toilet,

office, indoor decoration or similar purposes (other

than that of heading 7010 or 7018).

The merchandise was entered under subheading 7010.90.50,

HTSUS, as glass containers for the conveyance or packing of

goods. However, the entry was liquidated on June 4, 1993, under

subheading 7013.39.20, HTSUS, as glass containers for household

storage. The protest was timely filed on September 1, 1993.

ISSUE:

Are the \"banjo\" oval flask and long neck hexagon shaped

glass containers classifiable as containers for the conveyance or

packing of goods?

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. Heading

7010, HTSUS, provides for \[c\]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.

This is a use provision and as such, according to Additional

U.S. Note 1(a), HTSUS, \[i\]n the absence of special language or

context which otherwise requires\-- 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. Therefore, the principal use of the articles

at the time of importation in the United States, will determine

the article\'s classification.

In understanding the language of the HTSUS, the Harmonized

Commodity Description and Coding System Explanatory Notes (ENs)

may be consulted. The ENs, although not dispositive nor legally

binding, provide a commentary on the scope of each heading of the

HTSUS and are generally indicative of the proper interpretation

of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128,

(August 23, 1989). EN 70.10, pgs. 933-34 states, in pertinent

part, that:

\[t\]his heading covers all glass containers of the kinds

commonly used commercially for the conveyance or packing of

liquids or of solid products (powders, granules, etc.).

\[t\]hese containers remain in this heading even if they are

ground, cut, sand-blasted, etched or engraved, or decorated

(this applies, in particular, to certain perfume or liqueur

bottles), banded, wickered or otherwise trimmed with various

materials (wicker, straw, raffia, metal, etc.); they may

also have tumbler-caps fitted to the neck. They may be

fitted with drop measuring devices or may be graduated,

provided that they are not of a kind used as laboratory

glassware.

They include\...

\(B\) Jars, pots and similar containers for the conveyance or

packing of certain foodstuffs (condiments, sauces,

fruit, preserves, honey, etc.)\...

These articles are usually made of ordinary glass

(colourless or tinted) by pressure in a mould usually

followed by blowing with compressed air. They generally

have a large opening, a short neck (if any) and as a rule, a

lip or flange to hold the lid or cap. Some of these

containers, however may be closed by corks or screw

stoppers\...

In Headquarters Ruling Letter (HRL) 087359, dated August 8,

1990, Customs created a scope for the class of glass containers

commercially used to convey solid or liquid products. The ruling

stated, in pertinent part, that:

the key phrase in this instance is \"commonly used

commercially for the conveyance\" of liquids. The root word

of \"commercially\" is commerce which is described as the

exchange or buying and selling of commodities. Webster\'s

Third New International Dictionary, (1986) and The Random

House Dictionary of the English Language, (1983). The root

word of \"conveyance\" is convey which is described as to

carry, bring or take from one place to another; transport;

bear. The Random House Dictionary of the English Language,

\(1983\) and Webster\'s Third New International Dictionary,

(1986).

Therefore, for a glass container to be classifiable under

heading 7010, HTSUS, as a container for the packing or conveying

of goods, it must be part of the exchange or buying and selling

of commodities and it must be used to convey a product to a

consumer who then uses the product and then discards the

container.

We are of the opinion that the distribution of the

containers from the importer to distributors who then sell all of

the containers to various food packers indicates that the

containers are used to commercially convey food stuffs to a

consumer. Additionally, the containers\' lack of decoration, or

uncommon lid indicate that they are the type of containers that,

when emptied, will be discarded by the consumer. Finally, the

containers are made of ordinary glass by pressure in a mold, have

a large opening, a short neck, and a flange. Therefore, the

containers are classifiable in heading 7010, HTSUS, specifically

subheading 7010.90.50, HTSUS.

HOLDING:

The \"banjo\" oval flask and long necked hexagon shaped

sauce jars are classifiable in subheading 7010.90.50, HTSUS, as

containers for the conveyance or packing of goods.

The protest should be granted. In accordance with Section

3A (11)(b) of Customs Directive 0993550-065, dated August 4,

1993, Subject: Revised Protest Directive, this decision, together

with the Customs Form 19, 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 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 Ruling Module in ACS and the public via

the Diskette Subscription Service, Lexis, Freedom of Information

Act and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings