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HQ 960513




August 11, 1997

CLA-2 RR:TC:MM 960513 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.50

Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-96-100995; glass preserve jars; glass jars for conveyance or packing of liquids or of solid products; household glass storage articles; wire bail and rubber ring closure system; principal use; eo nominee; 7010.90.50; 7013.39.20; HRL 953282; HRL 088020; HRL 951721; HRL 956470; HRL 953952; T.D. 96-7; Myers v. United States, CIT Slip Op. 97-75; Group Italglass U.S.A., Inc. v. United States, 17 CIT 226 (1993); Commercial Aluminum Cookware Co. v. United States, 938 F. Supp. 875 (CIT 1996)

Dear Port Director:

This is in response to Protest 2704-96-100995, which pertains to the tariff classification of certain glass jars with wire bail and rubber ring closure systems under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise under protest consists of two liter glass jars, with a glass lid, rubber gasket, and wire bail. The merchandise is described in invoices in the file as "CANET SUNKIST CANNING JAR 2L[.]"

The sample jar provided bears a painted label, with an illustration of the sun, sky and green background and the words "CALIFORNIA PISTACHIOS[,]" "Sunkist[,]" "NATURALLY OPENED[,] DRY ROASTED[,] Tree-ripened[,] Salted In-shell[,]" "NET WT. 32 OZ. (2 LBS/907G)[.]" The sample is a traditionally-shaped jar. It has side mold seams, a knurled bottom surface, a number (5), letter (A), and the size (2L) on the bottom. The jar appears to be approximately as thick as standard home canning jars.

According to the protest, the jars are used by Sunkist for the conveyance of pistachio nuts. Sunkist, described as the packer/distributor, packs the jars with pistachio nuts, seals them with plastic packaging, and sends them to retail markets for sale to consumers. The jars are not available for sale to consumers empty.

Three entries of the merchandise are included in the protest. According to the file and Customs records, the dates of entry of the merchandise are September 14, September 22, and October 9, 1995. According to the Immediate Delivery form (Customs Form 3461) for the first entry, the importer classified the merchandise under subheading 7010.90.50, HTSUS. The Entry Summary forms (Customs Form 7501) show classification of the merchandise under subheading 7013.39.20. The entries were liquidated, respectively, on December 29, 1995, and January 12 and 26, 1996, with classification under the latter subheading. In a timely protest (filed on March 26, 1996) the protestant contends that the merchandise is properly classified under subheading 7010.90.50, HTSUS, as glass containers for the conveyance and packing of goods.

The competing subheadings, as of the time under consideration, are as follows:

7013.39.20: [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: ... [o]ther: ... [o]ther: [v]alued not over $3 each.

The 1995 general column one rate of duty for goods classifiable under this provision is 29.2% ad valorem.

7010.90.50: [c]arboys, 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: ...[o]ther: ... [o]ther containers (with or without their closures).

Goods classifiable under this provision receive duty-free treatment.
ISSUE:

Are the subject jars classified as preserving jars of glass under subheading 7010.90.50, HTSUS, or other glassware under subheading 7013.39.20, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to terms of the headings and any relative section or chapter notes...."

In Myers v. United States, CIT Slip Op. 97-75, decided June 17, 1997, the Court applied the competing tariff provisions in this case to glass jars similar to those under consideration. One kind of the jars ruled upon in Myers is described in HRL 953282, dated February 16, 1993. The jars are described as follows:

The products at issue consist of 1 liter and 1.5 liter glass jars. The jars are imported with a glass lid, rubber gasket, wire bale, and decorative blue ribbon. The jars have a country motif band painted in blue, pink, green and yellow around the middle of the jar, which is approximately 2 « inches wide. The name of the food packer, Country Estate Pecans, is printed within the country motif band in blue letters.

The jars are used by Country Estate Pecans, a division of Farmers Investment Company (Farmers), to pack sugar coated pecans. After the pecans are placed in the jar, the rubber gasket and wire bale locking device are used to seal the glass lid. In addition, a plastic tamper-proof seal is applied through the metal closure. The [jarred] pecans are sold to wholesale clubs. ...

Thus, in all pertinent aspects, the jars considered in Myers and the jars under consideration in this protest are virtually identical. In HRL 953282 we concluded that the subject jars were not classifiable as preserve jars in heading 7010, HTSUS, and held that they were properly classified under subheading 7013.39.20, HTSUS (see also HRL's 088020, January 14, 1991, 951721, January 12, 1993, 956470, September 28, 1994, 953952, September 21, 1994, and T.D. 96-7).

In Myers the Court found that the jars under consideration, including those described above, were properly classifiable under subheading 7010.90.50, HTSUS. The Court came to this conclusion via the following reasoning. Initially, on the basis of Group Italglass U.S.A., Inc. v. United States, 17 CIT 226, 228 (1993) (reconsideration granted in part, 17 CIT 373 (1993), petition for permission to appeal denied, 9 F. 3d 977 (Fed. Cir. 1993)), and Commercial Aluminum Cookware Co. v. United States, 938 F. Supp. 875, 882-883 (CIT 1996), the Court found that the tariff term "preserving jars of glass" in heading 7010, HTSUS, is an eo nomine provision and not a principal use provision, on the basis that "... the three clauses encompassed in [h]eading 7010 are separate independent clauses and the qualifying principal use language included in the first clause of [h]eading 7010, HTSUS, does not apply to the term preserving jars of glass'." The next step of the Court was defining the scope of the tariff term "preserving jars of glass" and distinguishing that term from "jars ... of a kind used for the conveyance or packing of goods" (the principal use provision in the first clause of heading 7010). The Court concluded that:

The three fundamental feature[s] which distinguish preserving' jars from packing and conveyance' jars and storage' jars are: (1) the thickness of the glass in the walls of the jars; (2) the jar's ability to form and maintain a hermetic seal; and (3) the jar's potential for reuse as a canning or preserving jar.

The Court found that the jars before the Court (in all pertinent respects the same as the jars under consideration in this protest) met each of the criteria. On the basis of the limiting language in heading 7013, HTSUS, "which covers certain glassware (other than that of heading 7010 or 7018)[,]'" the Court found that:

Because plaintiffs have established the merchandise at issue is properly classifiable under subheading 7010.90.50, HTSUS, the merchandise clearly cannot be classified under [h]eading 7013 because that heading specifically excludes any merchandise properly classified under [h]eading 7010, HTSUS.

Although we have ruled that jars such as those under consideration are classified under subheading 7013.39.20, HTSUS (see HRL's 953282, 088020, 951721, 956470, 953952 and T.D. 96-7), the merchandise under consideration in this case is virtually identical in all pertinent respects to that considered in Myers. The merchandise in this case meets the criteria set forth in Myers for "preserving jars of glass" to the same extent that the jars in Myers met those criteria. Accordingly, we must follow Myers in this protest.

HOLDING:

The jars at issue (traditionally-shaped two liter glass jars with a glass lid, rubber gasket, and wire bail, of approximately the thickness of standard home canning jars, and bearing a permanently painted label) are classifiable as preserving jars of glass under subheading 7010.90.50, HTSUS, in accordance with Myers v. United States.

The protest should be GRANTED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing of 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 Rulings Module in ACS and the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director, Tariff

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