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HQ 956470




September 28, 1994
CLA-2 CO:R:C:M: 956470 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39

District Director
U.S. Customs Service
PO Box 37260
6269 Ace Industrial Drive, Cudahy WI.
Milwaukee, WI 53237-2337

RE: Protest 3701-94-100021; Frosted glass storage jars; Additional U.S. Rule of Interpretation 1(a); Kraft, Inc., v. United States, G. Heilman Brewing Co. v. United States, United States v. Carborundum Company, Group Italglass U.S.A. v. United States; ENs 70.10, 70.13; HRL's 088020, 087359, 087779, 087727, 951721, 953282, 954293

Dear District Director:

The following is our decision regarding further review of Protest 3701-94-100021 concerning your action in classifying and assessing duty on frosted glass storage jars under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of the subject articles were provided.

FACTS:

The subject article is described as a frosted crock. The samples provided are 1 liter glass jars with metal bail and trigger closures. One is frosted black and the other white. They are not decorated nor do they contain any design in the glass. According to protestant, the jars can be used as storage jars (mainly for general use).

The merchandise was entered under subheading 7010.90.50, HTSUS, as jars for the conveyance or packing of goods or preserve jars. However, the entries were liquidated on January 7, 1994, under subheading 7013.39, HTSUS, as glassware of a kind used for table or kitchen purposes. The protest was timely filed on April 7, 1992.

The headings 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

7013 [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): [g]lassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics

ISSUE:

Whether the frosted glass jars are classifiable as containers for the conveyance or packing of goods, preserving jars of glass or as glassware of a kind used for table or kitchen purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). 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 competing headings are 7010 and 7013, HTSUS. Heading 7010, HTSUS, provides for two classes of glass containers, namely, glass containers for the conveyance or packing of goods and preserve jars. Heading 7013, HTSUS, provides for glassware of a kind used for table or kitchen purposes.

Both headings are considered "use" provisions. There are two principal types of classification by use:

(1) according to the actual use of the imported article; and

(2) according to the use of the class or kind of goods to which the imported article belongs.

Use according to the class or kind of goods to which the imported article belongs is more prevalent in the tariff schedule. A few tariff provisions expressly state that classification is based on the use of the class or kind of goods to which the imported article belongs. However, in most instances, this type of classification is inferred from the language used in a particular provision.

If an article is classifiable according to the use of the class or kind of goods to which it belongs, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that: [i]n the absence of special language or context which otherwise requires-- (a) 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the 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, USITR, 16 CIT 483, (June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 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.

The CIT in Group Italglass U.S.A. v. United States, USITR, 17 CIT ____, Slip Op. 93-46 (Mar. 29, 1993) held that the language of heading 7010, HTSUS, implicates use as a criterion of classification for that entire heading and that the principal use was the controlling use. Additionally, the court held that the phrase "of the kind" preceding the words "used for" did not constitute a special language or context. See Sturm, Ruth, Customs Law and Administration, vol. 2., sec. 53.3, p. 28.

Therefore, tariff classification of goods under heading 7010, HTSUS, is determined by the use of the class or kind of articles to which the imported merchandise belongs. Additionally, because heading 7013, HTSUS, also contains the language "of the kind" and "used for", classification of goods under it is also determined by the use of the class or kind of article to which the imported merchandise belongs. As such, the provisions are considered controlled by Additional U.S. Rule of Interpretation 1(a), HTSUS.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

The ENs to heading 7010, HTSUS, as well as several Headquarters Ruling Letters (HRLs), provide insight into the principal use of the class "glass containers used for the conveyance or packing of goods" and the scope of the class "preserving jars of glass". EN 70.10, pg. 933-934, states, in pertinent part, that "this heading covers all glass containers of the kind commonly used commercially for the conveyance or packing of liquids or of solid products (powders, granules, etc.). They include...

(B) Jars, pots and similar containers for the conveyance or packing of certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.)...

These articles are usually made of ordinary glass (colourless or tinted) by pressure in a mold usually followed by blowing with compressed air. They generally have a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap. Some of these containers, however may be closed by corks or screwstoppers.

The heading also includes preserving jars of glass.

EN 70.10 also states that heading 7010, HTSUS, does not include:

[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.

In HRL 087359, dated August 8, 1990, Customs articulated the principal use for a good classifiable in the class "glass containers used for the conveyance and packing of goods". It examined the EN language and stated, in pertinent part, that:
the key phrase in this instance is "commonly used commercially for the conveyance" of liquids. The root word of "commercially" is commerce which is described as the exchange or buying and selling of commodities. Webster's Third New International Dictionary, (1986) and The Random House Dictionary of the English Language, (1983). The root word of "conveyance" is convey which is described as to carry, bring or take from one place to another; transport; bear. The Random House Dictionary of he English Language, (1983) and Webster's Third New International Dictionary, (1986).

Therefore, for a glass jar to be classifiable under heading 7010, HTSUS, as a container for the conveyance or packing of goods, it must be part of the exchange or buying and selling of commodities and it must be used to convey a product. Additionally, the ruling held that after the container has conveyed a product, the consumer must discard the jar.

While EN 70.10 indicates that preserving jars of glass are classifiable under heading 7010, HTSUS, it does not provide a scope of what is included in the class, "preserving jars of glass". We are of the opinion that the class "preserving jars of glass" provides for various articles which are the typical size and shape of "Mason-type" jars. Whether a particular glass jar is a preserving jar of glass is determined on a case-by-case basis. This is demonstrated by the result in HRL 954293, dated June 30, 1993, where we held that a round jar that could contain 1/2 liter of foodstuff, even though it was somewhat shorter and wider than a typical preserve jar, was classifiable under heading 7010, HTSUS.

While we do consider classification of a particular jar on a case-by-case basis, Customs does have characteristics it considers to be indicative, but not conclusive, of a particular jar's classification as a preserving jar of glass. The characteristics are volumes between one half and 2 and one half liters and a shape of a typical Mason jar (e.g., not multi-sided).

These characteristics are consistent with the holding of HRL 087727, dated September 21, 1990, in which Customs ruled that the class "preserving jars of glass" of heading 7010, HTSUS, "is limited to merchandise in the sizes and shapes of typical 'Mason-type' preserving jars which hold the volumes typical of preserve jars (i.e., one half pint to one half gallon)." Various Customs rulings have confirmed that jars holding different volumes or in different forms than the typical preserve jar are classifiable elsewhere in the tariff. (see: HRLs 088020, 087779, 087727 and 951721)

Exemplars from EN 70.13 demonstrate that glassware principally used for household storage is within the scope of the class "glassware of a kind used for table or kitchen purposes". EN 70.13, pg. 936-937, states, in pertinent part, that:
this heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:

(1) [t]able or kitchen glassware, e.g., drinking glasses, goblets, tankards, decanters, infants' feeding bottles, pitchers, 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-pots 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 exemplars are articles that are all principally used to hold or store other articles in the home. Like these exemplars, there are certain glass storage jars which are principally used in this fashion. Therefore, glass articles which are principally used to store articles in the home are classifiable under subheading 7013.39, HTSUS.

After reviewing the ENs and relevant HRL's, Customs has identified the following characteristics as indicative, but not conclusive characteristics of glass household storage jars. They are glass jars:

1. made of ordinary glass, lead crystal glass, glass having a low coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware). They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved;

2. having a decorative motif consistent with a kitchen decor (e.g., geese, "country theme", etc.);

3. which the consumer purchases primarily to use for storage in the home;

4. sold from the importer to a wholesaler/distributor who then sells them to a retailer;

5. sold in an environment of sale that emphasizes the article's use or reuse as a storage article;

6. sold to the ultimate purchaser empty;

7. which are recognized in the trade as primarily having a household storage use; and

8. which are imported with their caps or lids.

This understanding is based on the above cited EN and relevant HRLs. HRL 953282, dated February 16, 1993, classified a 1 liter glass jar decorated with a blue ribbon and decalmania which created a country motif band in blue, pink, green and yellow around the middle of the jar. Customs held that, while the container did convey goods, its decoration, lid, and environment of sale all indicated that the principal use of the container was for storage, not the conveyance of goods. See also, HRL 087727, dated September 21, 1990, which classified spice jars as household storage jars.

Protestant asserts that the jars are either of the class "glass containers of a kind used for the conveyance or packing of goods" or the class "preserving jars of glass". We disagree. None of the evidence presented indicates that the subject jars are principally used to commercially convey goods or that an ultimate consumer would discard the jar after initial conveyance or packing use. Additionally, while the jar does have a closure consistent with some of the articles belonging to the class "preserving jars of glass", their color prevents them from being considered typical Mason type jars. Mason jars used for canning are always clear so the contents may be viewed. Furthermore, no evidence has been presented that the jars are principally used or even sold for preserving purposes.

The evidence presented indicates that the articles are principally used as household storage articles. Protestant states that "they [the frosted glass crocks] can be used as storage jars (mainly for general use)". Additionally, the sample indicates that the crock has several of the characteristics which are indicative of household storage jars. They are made of ordinary glass which has been frosted. Contrary to protestant's assertion, their solid black or white color does create a decorative motif consistent with a kitchen decor. Finally, protestant has recognized their use in the trade as a household storage article and they are imported with their closure.

For the foregoing reasons, we find the subject jars are classifiable under subheading 7013.39, HTSUS, as glassware of a kind used for table or kitchen purposes; other. Classification to the 8 digit level will depend upon the value of the jars.

HOLDING:

The protest is denied. The frosted glass crocks are classifiable under subheading 7013.39, HTSUS. Their corresponding column one duty rate will be determined by their value.

In accordance with Section 3A (11) (b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module, ACS, and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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