HQ 952099: Protest No. 3801-92-100229; Aluminum Foil Containers; Household articles; EN 76.12; EN 76.15 Dear Sir:

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

     


 

                            HQ 952099

                        February 3, 1993
                                                               


CLA-2 CO:R:C:M  952099 LTO

CATEGORY:  Classification

TARIFF NO.:  7615.10.70

District Director 
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48266

RE:  Protest No. 3801-92-100229; Aluminum Foil Containers;
     Household articles; EN 76.12; EN 76.15
 
Dear Sir:

     This is in reference to Protest No. 3801-92-100229, dated   
January 22, 1992, which concerned the classification of aluminum
foil containers under the Harmonized Tariff Schedule of the
United States (HTSUS).

FACTS:

     The articles which are the subject of this protest are
aluminum foil containers from Canada.  They come in various sizes
and shapes (carry-out containers, pizza pans, tart pans, pot pie
pans, pie plates, roasters, etc.), and are used in the home,
restaurants, hotels and similar places for cooking, kitchen or
other applications.  

     The protestant states that they are generally designed for
and used in the preparation, storing or serving of food.  The
protestant estimates that 75% of the containers are used by
restaurants for take-out purposes, 20% by wholesale club/retail
consumers, and 5% by food processors and commercial bakers.

     The containers were entered under either subheading
7615.10.70, or 7615.10.90, HTSUS.   Heading 7615, HTSUS, provides
for table, kitchen or other household articles of aluminum.  The
merchandise was classified upon liquidation under subheading
7612.90.10, HTSUS, which provides for other aluminum casks,  - 2 -

drums, cans, boxes and similar containers for any material, of a
capacity not exceeding 20 liters.  

ISSUE:

     Whether the aluminum foil containers are classifiable as
table, kitchen or other household articles of aluminum.

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule.  GRI 1
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 at issue are as follows:

     7612      Aluminum casks, drums, cans, boxes and 
               similar containers (including rigid or
               collapsible tubular containers), for
               any material . . . of a capacity not
               exceeding 300 liters, whether or not 
               lined or heat insulated . . . 

*    *    *    *    *    *    *    *    *    *    *    *    *    

     7615      Table, kitchen or other household 
               articles and parts thereof, of 
               aluminum . . . 

     The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) to Heading 7612, HTSUS, pg. 1068, states
that "[c]asks and drums of aluminum are mainly used for the
transport of milk, beer, wine, etc.; aluminum cans and boxes are
often used for packing foodstuffs."  The Note further states that
the provisions of EN 73.10 also apply, mutatis mutandis, to this
heading.  

     EN 73.10, pg. 1022, states that Heading 7310, HTSUS (which
provides for iron or steel tanks, casks, drums, cans, boxes and
similar containers, for any material), covers "containers of a
capacity not exceeding 300 l, but of a size easily moved or
handled, commonly used for the commercial conveyance and packing
of goods . . . ."  EN 73.10 further states that the smaller
containers covered by this heading "include boxes, cans, tins,
etc., mainly used as sales packings for butter, milk, beer,
preserves, fruit or fruit juices, biscuits, tea, confectionery, 
. . . etc."  
                              - 3 -

     The protestant argues that the articles of Heading 7612,
HTSUS, are "substantial" containers which are often reused in
commerce.  Further, the protestant contends that these articles
are items that are or can be closed, and that they are designed 
to transport large quantities over long distances.  On the other
hand, the protestant states that the aluminum foil containers in
question are specially designed for temperature conductivity,
heat retention and for keeping small quantities of food for short
periods of time.  

     EN 76.15, pg. 1069, states that Heading 7615, HTSUS, covers
the same type of articles as are described in the Explanatory
Notes to Heading 7323, HTSUS, particularly the kitchen utensils
described therein.  EN 73.23, pg. 1035, states that Heading 7323,
HTSUS, covers "a wide range of iron or steel articles, not more
specifically covered by other headings of the Nomenclature, used
for table, kitchen or other household purposes; it includes the
same goods for use in hotels, restaurants, boarding-houses,
hospitals, canteens, barracks, etc. [emphasis in original]."  The
articles for kitchen use covered by this heading include
saucepans, preserving pans, casseroles, frying pans, roasting or
baking dishes and plates, and kitchen storage tins and canisters
(bread bins, tea caddies, sugar tins, etc.).  The articles for
table use covered by this heading include trays, dishes, plates,
and bread or fruit dishes and baskets.  The household articles
covered by this heading include ashtrays.

     It is our opinion that the containers in question are of a
type described in EN 73.23 and are not commonly used for the
commercial conveyance and packing of goods.  They are primarily
used in restaurants and in the home.  They are used for cooking,
kitchen and other applications, such as storage.  Thus, the
containers are covered by Heading 7615, HTSUS, which includes
aluminum frying pans, baking dishes, kitchen storage tins, etc.

HOLDING:

     The aluminum foil containers (carry-out containers, pizza
pans, tart pans, pot pie pans, pie plates, roasters, etc.) are
classifiable under subheading 7615.10.70, HTSUS, which provides
for "[t]able, kitchen or other household articles and parts
thereof, of aluminum . . . [c]ooking and kitchen ware . . . [n]ot
enameled or glazed and not containing nonstick interior finishes
. . . [o]ther."  The corresponding rate of duty for articles of
this subheading is 4% ad valorem.

     The aluminum foil ashtrays and serving trays are
classifiable under subheading 7615.10.90, HTSUS, which provides
for other table, kitchen or household articles of aluminum.  The
corresponding rate of duty for articles of this subheading is - 4 -

 3.8% ad valorem.

     Accordingly, 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 on the
protest.

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division