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HQ 963665

April 24, 2000

CLA-2 RR:CR:GC 963665 AML


TARIFF NO.: 7013.39.20

Port Director of Customs
555 Battery Avenue
San Francisco, CA 94111

RE: Protest 2809-99-100787; empty glass bottles

Dear Port Director:

This is our decision on Protest 2809-99-100787, filed against your classification of empty glass bottles under subheading 7013.39.20, Harmonized Tariff Schedule of the United States (HTSUS). Photographs of the bottles were presented for our consideration.

The products, identified as glass oil and vinegar bottles, item # 2199/c, were entered on December 22, 1998, and the entries were liquidated on July 2, 1999. The protest was filed on October 1, 1999.

Initially, we note that as to the December 22, 1998, entry (# 721. . .11336), the protest was untimely (i.e., a protest must be filed within 90 days after but not before the notice of liquidation (19 U.S.C. §1514(c)(3)(A); 19 C.F.R. §174.12(e)). The notice of liquidation was dated July 2, 1999, and the protest was filed October 1, 1999, 91 days after the notice of liquidation (29 days in July, 31 days in August, 30 days in September and 1 day in October equals 91 days). For an example of the judicial treatment of a protest filed after the 90-day period for filing a protest, see Penrod Drilling Co. v. United States, 13 CIT 1005, 727 F. Supp. 1463, rehearing dismissed, 14 CIT 281, 740 F. Supp. 858 (1990), affirmed, 9 Fed. Cir. (T) 60, 925 F. 2d 406 (1991). The protest must be denied as to the December 22, 1998, entry.

For the protestant’s information, we briefly discuss the classification of the merchandise under consideration in this case. The provision in heading 7010, HTSUS, for containers "of a kind used" for the conveyance or packing of goods, and the provision in heading 7013, HTSUS, for glassware "of a kind used" for table or kitchen purposes are "principal use" provisions (Group Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993)).

The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. Those factors 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. Heileman 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, HTSUS, 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.

Customs has previously applied these guidelines in classifying glass articles substantially similar to those at issue. Such articles have been held to be classifiable in heading 7013, HTSUS. Therefore, even if the protest had been timely, the protest would have been denied on substantive grounds, as explained above. See Headquarters Ruling Letters (HQ) 089054, dated August 8, 1991; HQ 959941, dated October 27, 1997; HQ 959751 dated October 15, 1997; HQ 959639, dated February 24, 1999; HQ 959637, dated October 27, 1997; HQ 959942, dated October 27, 1997; HQ 960162, dated October 17, 1997; HQ 960163, dated October 22, 1997; HQ 959638, dated October 10, 1997; all of which indicate that principal use determines classification when the issue of containers (7010, HTSUS) versus storage articles (7013.39, HTSUS) is raised. See also HQ 961409 dated October 22, 1998, in which a substantially similar article was determined to be classifiable under subheading 7013.39, HTSUS.

Pursuant to 19 U.S.C. 1514(c)(3)), the protest was not timely filed and therefore, must be DENIED. 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 sixty (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 (60) days from the date of the decision, the Office of Regulations and Rulings make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director,

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