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HQ 953096

August 9, 1993
CLA-2 CO:R:C:M 953096 MMC


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.


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%


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?


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.


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.


John Durant, Director
Commercial Rulings

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