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HQ 952675


January 15, 1993

CLA-2 CO:R:C:M 952675 EJD

CATEGORY: CLASSIFICATION

TARIFF NO: 7013.39.20

Ms. Jean F. Maguire
Area Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048-0945

RE: Protest No. 1001-91-107794; Glass Storage Jars; Headings 7010 and 7013; Subheading 7010.90.50; ENs 70.10 and 70.13; Additional U.S. Rule of Interpretation 1(a); HQs 087727, 088020, 089054 and 951721

Dear Ms. Maguire:

This is in response to the Application for Further Review of Protest no. 1001-91-107794, undated, which pertains to the tariff classification of glass storage jars under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The glass storage jars are multisided glass articles of various sizes, shapes, forms and volumes, with air-tight rubber seals and metal loop fastener closures. These glass storage jars include: a 2 liter spaghetti jar of over eight inches in height; a 1 liter jar; a .75 liter jar; a 1.5 liter jar; and a 2 liter jar.

The importer contends that the merchandise is classifiable under subheading 7010.90.50, HTSUS, which provides for containers or preserving jars. You maintain that the merchandise is household storage jars classifiable under subheading 7013.39.20, HTSUS, which provides for table/kitchen glassware.

ISSUE:

Are the glass jars classified in subheading 7010.90.50, HTSUS, or in subheading 7013.39.20, HTSUS?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Headings 7010 and 7013, HTSUS, are both considered "use" provisions. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides:

In 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." (Emphasis added.)

The two competing headings for these glass containers are the following:

Heading 7010, HTSUS, which provides for "[c]arboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods

Heading 7013, HTSUS, provides for "[g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of headings 7010 or 7018)."

The importer believes that the glass container should be classified under subheading 7010.90.50, HTSUS, which provides for "[c]arboys, bottles, flasks, jars, pots, vials, ampoules and other containers, of glass, of a kind used for the conveyance or packing of goods * * * [o]ther...[o]ther containers (with or without their closures)."

The Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System (HCDCS) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. They 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. ENs, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (1989).

EN 70.10 states that "[t]his heading covers all glass containers of the kinds commonly used commercially for conveyance or packing of liquids or solid products (powders, granules, etc.)." HCDCS, p.933. EN 70.10 further states that "[t]h[is] heading does not include: * * * (c) [d]ecanters, drinking glasses and other glass containers being domestic glassware (heading 70.13), but not containers used primarily for the commercial conveyance or packing of goods." HCDCS, p. 934.

EN 70.13 states that:

This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:

(1) Table or kitchen glassware, e.g. drinking glasses, goblets, tankards, decanters, infants' feeding bottles, pitches, jugs, plates, salad bowls, sugar-bowls, sauce- boats, fruit-stands, cake-stands, hors-d'oeuvres dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pot and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee- mills, cheese dishes, lemon squeezers, ice-buckets.

These articles may be e.g., of ordinary glass, lead crystal, glass having low coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware).

The heading also excludes:

(b) Bottles, flask, jars and pots of a kind commonly used for the commercial conveyance or packing of goods, and preserving jars (heading 70.10).

HCDCS, p. 936-936a.

Numerous glass articles used to hold food product within the home are not classified as jars in subheading 7010.90.50, HTSUS, but are considered to be household storage articles classifiable as table/kitchenware in subheading 7013.39, HTSUS. For example, in Headquarter Ruling Letters (HQ) 087727, dated September 21, 1990, Customs defined preserve jars. "Preserve jars classifiable in Heading 7010, HTSUSA, should be limited to merchandise in the sizes and shapes of typical "Mason"-type to preserve jars which hold the volumes typical of preserve jars (i.e., one half pint through one half gallon)."

Multisided storage articles are not considered preserving jars. They are household storage articles classifiable under subheading 7013.39, HTSUS, not heading 7010, HTSUS. One of the subject articles include spaghetti jars which are too tall to be regarded as preserving jars. Spaghetti jars are generally classified as household storage articles under subheading 7013.39, HTSUS.

In HQ 088020, dated January 14, 1991, Customs classified similar glass storage jars with a metal loop fastener closure and a rubber ring seal. HQ 088020 indicated that only items which are too tall, have unusual shapes (e.g., multisided) or hold volumes greater that held by the prototypical preserve jar may not be classified as preserve jars in heading 7010, HTSUS. These glass storage jars were classifiable under subheading 7013.39.20, HTSUS, which provides for glassware of a kind used for kitchen glassware of a kind used for kitchen purposes other than that of glass-ceramics, other, other, valued not over $3 each.

HQ 089054, dated August 2, 1991, dealt with the classification of various glass items, including cobalt blue glass storage jars used to hold bath salts, bath crystals and other materials. We ruled that these cobalt blue glass storage jars were principally used to hold food material and were classifiable as storage articles under subheading 7013.39.20, HTSUS. See also HQ 951721, dated January 8, 1993.

The subject glass jars are akin to the jars discussed above. They do not function as containers (i.e., they are not used to pack or convey merchandise destined for the consumer). They are shaped and sized differently than commercial jars used to preserve food. In addition, the lids would not seal the jars sufficiently to be used to preserve food or commercially. They are not disposable containers.

It is our position that the jars at issue are household jars that are used to hold food. They are similar to may of the articles listed in EN 70.13, HTSUS, as they are functional for storing of articles of food. The glass jars are, therefore, classified in heading 7013, HTSUS. Specifically, they are articles used to hold food product within the home which are classifiable as table/kitchenware under subheading 7013.39, HTSUS. The eight digit subheading will vary depending on the value of the jars.

Finally, we note that it has come to our attention from the Assistant Chief Counsel's office that merchandise similar to the subject glass jars are the subject of pending litigation before the Court of International Trade in Group Italglass U.S.A., Inc. v. United States. Consequently, until this litigation is resolved, protests regarding the classification of this merchandise should be denied.

HOLDING:

The protest should be denied. 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

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