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HQ 966105





February 27, 2003

CLA-2 RR: CR: GC 966105 DBS

CATEGORY: CLASSIFICATION

TARIFF NOS.: 7013.39.20, 7013.39.50, 7013.39.60, 7013.99.50

Mr. Peter S. Herrick, Esq.
3520 Crystal View Court
Miami, FL 33133

RE: Reconsideration of HQ 965200; glass articles

Dear Mr. Herrick:

This is in response to your letter dated December 10, 2002, on behalf of GlasPak Industries, Inc. (“GlasPak”), requesting reconsideration of HQ 965200, a decision on the Application for Further Review of Protest # 5201-00-100573, issued on July 10, 2002. In the letter you request review pursuant to a claim of inconsistent treatment pursuant to 19 C.F.R §177.13 (formerly §177.12, revised in 2002), as well as a claim of conflict with a decision of the United States Court of International Trade. We have reviewed the ruling and find it to be correct.

FACTS:

In HQ 965200 the following glass articles, imported empty, were classified in subheadings 7013.39.20, 7013.39.50, 7013.39.60 or 7013.99.50, HTSUS, depending on value: Factory/# Protestant’s # Description

LM 5023 605023 Puchades Jar, 1000 ml capacity
3” opening with 1” lip cork closure

LM 5024 605024 Puchades Jar, 500 ml capacity 2.5” opening with 1” lip cork closure

LM 5025 605025 Puchades Jar, 250 ml capacity 2” opening with 1.75” lip cork closure

LM 5028 605028 Mielera Jar, 1000 ml capacity 2” opening with 1.75” lip cork closure

LM 5029 605029 Mielera Jar, 500 ml capacity 2.25” opening with 1” lip cork closure

LM 5030 605030 Mielera Jar, 250 ml capacity 2” opening with 1.75” lip cork closure

VE 02001660 100532 Giotto, 500 ml capacity .68” opening with .32” lip cork closure

VE 02001669 100530 Giotto, 100 ml capacity .36” opening with .32” lip cork closure

VE 02002094 100531 Giotto, 200 ml capacity .44” opening with .32” lip cork closure

VE 02002903 100202 Cuore Collo Stretto, 100 ml capacity .48” opening with .25” lip cork closure

VE 02003795 100550 Rafaello Quadra, 200 ml capacity .44” opening with .32” lip cork closure

VE 02001733 100080 Mezzo Onda Piu, 250 ml capacity .80” opening with .32” lip cork closure

VE 02001126 100090 Mezzo Onda Meno, 250 ml capacity .80” opening with .32” lip cork closure

VE 02001219 100430 Vaso Giotto, 380 ml capacity 2.48” opening with .32” lip

VE 02001498 100080 Strauss, 200 ml capacity .76” opening with .32” lip cork closure

VE 02003570 100380 Lipari, 100 ml capacity .40” opening with .32” lip cork closure
VE 02002090 100370 Salina, 100 ml capacity .40” opening with .32” lip cork closure

VE 02002045 100170 Luna, 200 ml capacity
.68” opening with .32” lip cork closure

VE 02001686 100270 Pesce Squalo, 750 ml capacity .80” opening with .32” lip cork closure

VE 03000739 100040 Goccia, 100 ml capacity .28” opening with .32” lip cork closure

VE 02001481 100340 Beethoven, 500 ml capacity .80” opening with .32” lip cork closure

VE 02001441 100350 Rossini, 500 ml capacity .68” opening with .32” lip cork closure

VE 02003769 100290 Cammello, 200 ml capacity .68” opening with .32” lip cork closure

VE 02000913 100100 Cuadra Onda, 250 ml capacity .68” opening with .32” lip cork closure

VE 02001847 100060 Palline, 100 ml capacity .32” opening with .28” lip cork closure

VE 02001717 100275 Pesce Luna, 750 ml capacity .76” opening with .36” lip cork closure

VE 02001978 100525 Michelangelo, 100 ml capacity .48” opening with .2” lip cork closure

VE 02001978 100526 Michelangelo, 200 ml capacity .48” opening with .28” lip cork closure

VE 02001978 100527 Michelangelo, 500 ml capacity .76” opening with .24” lip cork closure

VE 02001976 100540 Raffaelo, 100 ml capacity .48” opening with .2” lip cork closure

VE 02002101 100541 Raffaelo, 200 ml capacity .48” opening with .28” lip cork closure

VE 02002142 100570 Vienna, 200 ml capacity .48” opening with .32” lip cork closure

VE 02001685 100280 Pesce, 750 ml capacity .76” opening with .36” lip cork closure

VE 100581 Onda Alta, 200 ml capacity
.56” opening with .32” lip cork closure

VE 100400 Onda Alta, 100 ml capacity
.48” opening with .32” lip cork closure

VE 03001403 100260 Cavallucio Marino, 200 ml capacity .76” opening with .24” lip cork closure

VE 02001232 100600 Toledo, 100 ml capacity .48” opening with .32” opening cork closure

VE 02001562 100510 Quadrotta, 100 ml capacity .56” opening with .32” lip cork closure

VE 02001563 100515 Quadrotta, 250 ml capacity .56” opening with .32” lip cork closure

VE 02001564 100520 Quadrotta, 500 ml capacity .8” opening with .32” lip cork closure

No description or illustration was ever provided for the following items, also classified in the aforementioned value-dependent provisions: item #s VE 85000242 (TO 48 Oro Rosso 48mm), 85000156 (TO 53 Oro RTS 53mm), 85000171(TO 58 Oro RTS 58mm), 85000139 (TO 63 Oro RTS 63mm), 85000121(TO 70 ABA RTS 70mm), item #s VE 85000125 (TS Granada/et cal), 85000056 (Tappo Sugh A 24 x 14), 85000095 (TS Quadrotta 100/250), 85000055 (Tappo Sug B 26 X16); SG 933, Melon Jar 1.7 liter with cork lid; SG 928 Melon Jar 3.7 liter with cork lid, SG 929 Melon Jar 7 liter with glass lid; SG 930 Melon Jar 16 liter with glass ball top; SG 901 Orcio Hermetic Jar with hinged glass; SG 702LE 12” Square pasta with cork lid; SG 6701 Chairman Jar .85 liter; SG 6702 Chairman Jar .4 liter with cork lid; SG 9801 Fruit Basket Shaped Jar; SG GS-23 Quadra Etung; SG 3501-4 Square Jar .85 liter with cork lid; SG 933.

ISSUE:

Whether the glass articles at issue are classifiable as glassware of a kind used for kitchen or decoration under heading 7013, HTSUS, or as glass of a kind used for the conveyance or packing of goods.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions 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:

7010.90 Other:

7010.90.50 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): Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics:

7013.39 Other:
Other:

7013.39.20 Valued not over $3 each

Other:
Valued over $3 but not over $5 each
7013.39.60 Valued over $5

Other glassware: * * *
Other:
Other:
Other:
Valued over $.30 but not over $3 each

We first note that under San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), the decision on the merchandise which was the subject of Protest 5201-00-100573 was final on both the protestant and the Customs Service. Therefore, while we may review the law and analysis of HQ 965200, any decision taken herein would not impact the entries subject to that ruling.

We further note that a claim under 19 C.F.R. §177.13 regarding inconsistent Customs decisions is inapplicable to this case. §177.13 provides, in pertinent part, as follows:

(a)(1) Inconsistent decisions subject to petition. The decisions which may be the subject of a petition include: (i) Decisions described in section 514(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1514(a)), made with respect to the same, or substantially similar, merchandise; and (ii) Repeated decisions to conduct intensified inspections or examinations of merchandise at ports of entry.

A decision is a term of art for purposes of this provision. Relevant decisions are those made by Customs on protested entries, or decisions by Customs regarding the above-described inspections. You claim that another importer is entering glass articles under heading 7010, HTSUS, through the Port of New York that are substantially similar to those classified under heading 7013, HTSUS, in HQ 965200. The entry and liquidation of goods is not a decision by the port for purposes of §177.13. Rather, if the products are substantially similar, this would constitute inconsistent treatment. A copy of this ruling will be forwarded to the Port of New York to ensure any inconsistency is identified.

The appropriate basis for reconsideration is the claim that HQ 965200 is in conflict with American Plastic Molding, Inc., v. United States, Slip. Op. 2002-120, (CIT Oct. 5, 2002) [hereinafter APM]. The Court in APM held that the urn-shaped glass article at issue was classifiable under heading 7010, HTSUS, and not under heading 7013, HTSUS. Headings 7010 and 7013, HTSUS, are both controlled by principal use. See Group Italglass U.S.A, Inc., v. United States, 17 CIT 226, 228 (1993); Additional U.S. Rule of Interpretation 1(a), HTSUS. Due to the language of heading 7013, HTSUS, if a good is classifiable in both headings, heading 7010, HTSUS, will prevail if principal use is proven with respect to heading 7010, HTSUS.

Principal use is the largest use in the United States at the time of importation of articles of the same class or kind as the imported article.

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. Additional U.S. Rule of Interpretation 1(b), HTSUS.

Generally, class or kind is determined based on the form of the article in question. If the form is indeterminate, the following criteria may be considered: 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 addition, Treasury Decision 96-7 sets forth criteria, which are indicative, but not conclusive, of classification for containers of glass of a kind used for the conveyance or packing of goods in heading 7010, as follows:

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.

Given the aforementioned criteria, classification in heading 7010, HTSUS, rather than heading 7013, HTSUS, is determined on a case-by-case basis, applying the individual facts presented to all of the relevant criteria. In APM, the plaintiff established to the court’s satisfaction the principal use of the article as a container of heading 7010, HTSUS. The Court applied the facts established at trial based on the evidence presented to the criteria in T.D. 96-7, the same criteria that was employed in HQ 965200.

The court observed that the glass article at issue was unattractive, due in part to the presence of lugs (molded threads), which also contribute to the article’s ability to be used in the hot packing process. The plaintiff provided the court with credible evidence regarding the direct sale to wholesalers or distributors, and not to the public, the environment of sale, the commercial conveyance of the biscotti for which the article was intended to convey, etc. The court weighed all of the factors before it, and concluded that the merchandise fulfilled the criteria. In other words, the plaintiff had satisfied the burden of proving principal use for classification in heading 7010, HTSUS.

In this case, the information presented to Customs does not satisfy the burden of proof. You have offered no information on the principal use of these products. What we glean from the information we have supports classification in heading 7013, HTSUS, for the reasons stated in HQ 965200. Moreover, none of the instant glass articles are substantially similar to the article at issue in APM. Therefore, we find that APM is not in conflict with, nor is it applicable to the instant glass articles.

Further, as discussed in HQ 965200, 19 U.S.C. §1514(c)(1)(B) through (D)), and the Customs Regulations issued under this law require that protests be made “distinctly and specifically”. 19 C.F.R. §174.13(a)(5) and (6). The Customs Regulations governing ruling requests similarly require that the article(s) in question be fully and complete described. See 19 C.F.R. § 177.2(b)(2)(ii)(A). The following articles were never described: item #s VE 85000242 (TO 48 Oro Rosso 48mm), 85000156 (TO 53 Oro RTS 53mm), 85000171(TO 58 Oro RTS 58mm), 85000139 (TO 63 Oro RTS 63mm), 85000121(TO 70 ABA RTS 70mm), item #s VE 85000125 (TS Granada/et cal), 85000056 (Tappo Sugh A 24 x 14), 85000095 (TS Quadrotta 100/250), 85000055 (Tappo Sug B 26 X16); SG 933, Melon Jar 1.7 liter with cork lid; SG 928 Melon Jar 3.7 liter with cork lid, SG 929 Melon Jar 7 liter with glass lid; SG 930 Melon Jar 16 liter with glass ball top; SG 901 Orcio Hermetic Jar with hinged glass; SG 702LE 12” Square pasta with cork lid; SG 6701 Chairman Jar .85 liter; SG 6702 Chairman Jar .4 liter with cork lid; SG 9801 Fruit Basket Shaped Jar; SG GS-23 Quadra Etung; SG 3501-4 Square Jar .85 liter with cork lid; SG 933.

The regulations also require that a request include, “whenever germane to the proper classification of the article, information as to the article’s chief use in the United States, its commercial, common, or technical designation” 19 C.F.R. § 177.2(b)(2)(ii)(A). None of this information was provided for any of the articles in question. Without evidence to the contrary, we must affirm HQ 965200.

HOLDING:

All of the glass articles at issue in this ruling are classifiable in subheadings 7013.39.20, 7013.39.50, 7013.39.60, or 7013.99.50, HTSUS, depending on value.

EFFECT ON OTHER RULINGS:

HQ 965200, dated July 10, 2002, is hereby affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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