HQ 953096

August 9, 1993

CLA-2 CO:R:C:M 953096 MMC

CATEGORY: Classification

TARIFF NO.: 7010.90.50

District Director

U.S. Customs Service

Lincoln Juarez Bridge, Bldg #2

P.O. Box 3130

Laredo, Tx. 78044-3130

RE: Protest No. 2304-92-100016; Glass decorated tumbler;

7013.29.10; Additional U.S. Note 1(a); Kraft Inc. vs. U.S.

Dear District Director:

The following is our decision regarding the request for

further review of Protest No. 2304-92-100016, which concerns the

classification of glass decorated tumblers under the Harmonized

Tariff Schedule of the United States (HTSUS). The entries of the

subject merchandise were liquidated on 11/01/91 and the protest

was timely filed on 1/30/92.

FACTS:

The articles are 10 oz. decorated tumblers. The body is

straight sided and tapered. They are decorated with three

applied-ceramic ducks, depicted in varying positions, which are

separated by vertical rows of florets. The finish is described

in the submitted Manual as AOIG-1714 (WHITE TD-372 ANCHOR LE-

775\) SNAP CAP,RESEAL BEAD STYLE GLASS FINISH. The bead style

flange is slightly pronounced (0.125\" wide) and used to secure a

reusable lid. Mold seams appear on each side of the container.

The bottom surface contains coded information which identifies

the manufacturer and machine used to produce a particular

container and knurling. Bearing surface knurling are groves used

to aid in gripping a conveyor belt. The containers are imported

empty and without a lid.

After importation, the containers are shipped directly to a

packer where they are filled with jelly and shipped to a

distributor who then sells them to grocery and similar stores.

The protestant claims that the containers are classifiable

under subheading 7010.90.50, HTSUS, which provides for containers

of glass of the kind used for the conveyance or packing of goods.

Upon liquidation, the articles were classified under subheading

7013.29.10, HTSUS, which provides for drinking glasses other than

that of glass ceramics valued not over \$0.30 each.

The subheadings under consideration are as follows:

7010.90.50 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:\[o\]ther:

\[o\]ther containers (with or without their

closures) Free

7013.29.10 Glassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018): \[d\]rinking glasses, other than of

glass-ceramics: \[o\]ther: \[o\]ther: \[v\]alued

not over \$0.03 each 38%

ISSUE:

Are the tumblers principally used as containers for the

conveyance or packing of goods provided for in heading 7010,

HTSUS, or as drinking glasses provided for in heading 7013,

HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in

accordance with the General Rules of Interpretation (GRI\'s),

taken in order. GRI 1, HTSUS, states in part that for legal

purposes, classification shall be determined according to the

terms of the headings and any relative section or chapter notes.

In this case, the relevant headings are headings 7010 and

7013, HTSUS. Both are use provisions. According to Additional

U.S. Note 1(a), \[i\]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.

Protestant cites Kraft Inc. vs. U.S., Slip. Op. 92-93, 26

Cust. Bull. 15 (CIT 1992), (Kraft) as a case that lists factors

to consider when determining whether a particular glass article

belongs to a class or kind of merchandise principally used for

packaging food for commercial conveyance. Kraft is a case

decided under the Tariff Schedule of the United States (TSUS),

the precuser to the HTSUS. Congress has decided that these prior

decisions should be considered instructive in interpreting the

HTSUS, particularly where the nomenclature previously interpreted

in those decisions remains unchanged and no dissimilar

interpretation is required by the text of the HTSUS. H. Rep. No.

100-576, 100th Cong., 2D Sess. 548 (1988) at 550.

Kraft involved the importation of empty glass jars molded in

the shape of a small seated bear. The finish was threaded and

its body had a recognizable shoulder, sidewall, and heel. The

bear shaped jars were filled with jelly in the United States and

used in a promotional program to market the jelly.

Upon liquidation, Customs classified the bear jars under

item 546.52, TSUS, the precursor to subheading 7013.39.00, HTSUS.

Item 546.52,TSUS, in pertinent part provided for \"\[g\]lassware of

a kind used for the table, kitchen, toilet, office, indoor

decoration, or similar purposes other than that of glass

ceramics; \[o\]ther\". The importer protested this classification

and offered item 545.27, TSUS, the precursor to heading 7010, as

the proper classification.

The court determined that both items were use items,

therefore General Headnote 10(e)(i),TSUS, applied. General

Headnote 10(e)(i) was the precursor to Additional U.S. Note 1(a),

HTSUS. Additional U.S. Note 1(a) remains relatively unchanged

from its TSUS precursor.

When determining what class or kind the article belonged to,

the court considered the general physical characteristics of the

merchandise, the expectation of the ultimate purchaser, the

channels of trade in which the merchandise moves, the environment

of sale, and the use of the article. When the court applied

these factors they determined that the bear shaped jars were not

of the class or kind of other household glassware but rather, of

the class or kind of glassware used for the commercial conveyance

of food.

The protestant in this case applies the criteria of Kraft to

the container and concludes that it is not used in the same

manner defined by the class or kind \"drinking glass\" but as a

container for packing food. Therefore, it\'s principal use is as

a container for packing food. We agree. While both uses are

possible as imported, the container\'s principal use is as a food

packing jar.

The physical characteristics of the tumbler indicate, that

at the time of importation, it is principally used as a container

for packing food and not as a drinking glass. The design for hot

packing, mold seams, knurling, and embedded manufacturing

information of the tumbler all indicate that this is a container

principally designed for packing food.

As in Kraft, the present containers are designed for use in

the hot packing process which indicates their prinicipal use as

food packing jars. The mold seams on the container are created

by a manufacturing process which is used only to create food

packing jars. Drinking glasses have no seams and are created by

a different process. The bearing surface knurling are placed on

the jar for better gripping of a conveyor belt during the filling

process. Drinking glasses do not have bearing surface knurling.

Finally, each jar contains an embedded code on the bottom which

allows the jar to be traced back to its place of manufacture.

Drinking glasses do not not have these codes embedded in the

glass.

According to Kraft, ultimate purchasers may be attracted to

food in glass jars because the design of the jar attracts their

attention. While this jar appears to be designed for future use

as a drinking glass, we have no information that indicates that

ultimate purchasers are attracted to the containers because of

their possible use as drinking glasses and not because of their

decoration.

Furthermore, the containers travel in the same channel of

trade as the jars in Kraft. After importation, the containers

are shipped directly to a packer who fills them and sells them to

a retailer.

The physical characteristics and recognition in the trade

indicate that at the time of importation, the jars are

principally used as food packing jars. Therefore, they are

classifiable in subheading 7010.90.50, HTSUS.

HOLDING:

For the foregoing reasons, we find that the BAMA tumblers

are classifiable under subheading 7010.90.50, HTSUS, as

containers used primarily for the commercial conveyance or

packing of goods.

The protest should be granted in full. A copy of this

decision should be attached to the Customs Form 19 and provided

to the protestant as part of the notice of action.

Sincerely,

John Durant, Director

Commercial Rulings