HQ 962378

April 8, 1999

CLA‑2 RR:CR:GC 962378 AML

**CATEGORY:** Classification

**TARIFF NO.:** 7013.39.20

Port Director

U.S. Customs Service

33 New Montgomery Street, \# 1501

San Francisco, CA 94105

**RE:** Protest 2809‑98‑100508; glass jar

Dear Port Director:

This is in response to Protest 2809‑98‑100508, which pertains to the
tariff classification of glass jars under the Harmonized Tariff Schedule
of the United States (HTSUS). Pictorial representations were submitted
for our review.

**FACTS:**

The glass jar, style \# 05856P, is an urn shaped, clear glass jar which
measures approximately 12.5 inches in height and 24 inches in
circumference at its widest point. The jar is constructed with
semicircular, glass handles which appear to be seamlessly molded to the
neck of the jar. The jars are imported at a cost of \$1.80 each and then
sold to a retailer which fills the jars with *biscotti*, an Italian
cookie, and sells the cookie filled jars for \$16.00. After the retailer
fills the jar with cookies, the jar is fitted with a wooden lid with a
rubber seal on the inside and is shrink wrapped.

The articles were entered on June 27, 1997, and the entries were
liquidated on May 8, 1998, with classification in subheading 7013.39.20,
HTSUS, as glassware of a kind used for table or kitchen use. This
protest was timely filed on August 5, 1998.

**ISSUE:**

Whether the glassware is classifiable in subheading 7010.91.50, HTSUS,
as containers of glass of a kind used for the conveyance or packing of
goods; or under subheading 7013.39.20, HTSUS, as 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 the matter 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 headings under consideration are as follows:

7010 Carboys, bottles, flasks, jars, pots, vials, am‑

poules 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:

7010.91.50 Other containers (with or without

their closures).

\* \* \* \* \* \* \* \* \* \* \*

7013 Glassware of a kind used for table, kitchen,

toilet, office, indoor decoration or similar

purposes (other than that of heading 7010 or

7018):

7013.39 Other:

7013.39.20 Valued not over \$3 each.

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 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 v. United
States,* 969 F. Supp. 66, 75 \[CIT 1997\]).

The 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:

> \[i\]n 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 C.F.R. §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,
physical form of a glass article 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 ENs for heading 7010 are helpful in this analysis. EN 70.10 states,
in pertinent part: "\[t\]his 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]{.underline} (1973), p. 295, and [Webster\'s New World
Dictionary]{.underline} (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. *[Id.]{.underline},* 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.

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 glass jar is as follows.
The article appears to be manufactured by automatic machines from
ordinary glass. It is similar in shape to an urn. It has a wide opening,
moderate length neck, and is configured to hold a rubber lined, wooden
lid. Because of the unusual and attractive shape, an ultimate
purchaser's primary expectation would be to reuse the article after the
conveyed or packed goods are used (note also that the article is
configured for a wooden lid which allows for repetitive, extremely easy,
opening and closing). We note that although the protestant states that
the container is sold from the importer to a customer who fills it with
Italian cookies, packing cookies for sale in glassware is relatively
rare; cookie jars are principally used as storage articles in the home.
There is evidence that container is emphasized over the goods packed in
it, *i.e*., molded glass handles and a unique, decorative shape, and the
physical form of the article (see above) indicates that this is so. The
cost of the cookie filled article (\$16.00) supports the conclusion that
the glass jar is the primary focus of the purchaser with the contents
simply emphasizing a suggested use of the reusable jar. 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 container
is 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.

The 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 that 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, "pitchers", "jugs", and
"sweetmeat boxes"). Accordingly, the glass jars 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.

This determination is consistent with several prior rulings of this
office: HQ 959637, dated December 4, 1997; HQ 959638, dated October 10,
1997; HQ 959639, dated October 21, 1997; HQ 959751, dated October 15,
1997; HQ 959941, dated October 27, 1997; HQ 959942, dated October 27,
1997; and HQ 960162, dated October 17, 1997; all of which applied the
criteria delineated in T.D. 96-7, the *eo nomine* and use analyses
applied herein, as well as ENs 70.10 and 70.13, and determined that,
based on the decorative appearance and reusability of the glassware in
question, such articles are classifiable in heading 7013 as glassware of
a kind used for table, kitchen, indoor decoration or similar purposes.

**HOLDING:**

The glass jars 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 should be [DENIED]{.underline}. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993,
Subject: Revised Protest Directive, you are to mail this decision,
together with the Customs Form 19, to the protestant no later than 60
days from the date of this letter. Any reliquidation of the entry or
entries in accordance with the decision must be accomplished prior to
mailing the decision. Sixty days from the date of the decision, the
Office of Regulations and Rulings will make the decision available to
Customs personnel, and to the public on the Customs Home Page on the
World Wide Web at *www.customs.ustreas.gov,* by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director,

Commercial Rulings Division

Enclosure