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HQ 966256




August 19, 2003

CLA-2 RR:CR:GC 966256 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39

Mr. Peter A. Quinter
Becker & Poliakoff, P.A.
P.O. Box 9057
Ft. Lauderdale, FL 33310

RE: Modification of HQ 965200, classification of glass jar with wire bail and trigger, rubber ring closure system

Dear Mr. Quinter:

This is in regard to Headquarters Ruling Letter (“HQ”) 965200, a decision on the Application for Further Review of Protest # 5201-00-100573 (initiated by you on behalf of GlasPak Industries, Inc.), issued on July 10, 2002. HQ 965200 concerned, in pertinent part, the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of certain empty glass jars with wire bail and trigger, rubber ring closure systems. We have reconsidered the classification of such articles. This letter sets forth the correct classification.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), notice of the proposed modification of HQ 965200 was published on June 25, 2003, in Vol. 37, No. 26 of the Customs Bulletin. One comment was received in response to this notice.

FACTS:

In HQ 965200, we described the articles at issue as follows:

VE 02003716 100450 Vaso Le Carre, 200 ml capacity 3.48” opening with bail and
trigger closure

VE 02002797 100460 Vaso Le Carre, 350 ml capacity 3.48” opening with bail and trigger closure

VE 98000101 100470 Vaso Le Carre, 500 ml capacity 3.28” opening with bail and trigger closure

We framed and discussed the classification of these articles as follows:

The provision for preserving jars of glass in heading 7010 is an eo nomine provision (Myers v. United States, 969 F. Supp. 66, 71-73 (CIT 1997)). The provision in heading 7010 for containers "of a kind used" for the conveyance or packing of goods and the provision in heading 7013 for glassware "of a kind used" for table or kitchen purposes are "principal use" provisions (Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993)). As an eo nomine provision is more specific than a use provision, we will consider the former first. Next, we will consider merchandise which is properly classifiable under heading 7010 as “of a kind used” as it cannot be classified under heading 7013, because of the specific parenthetical provision to that effect in heading 7013 (Myers, 969 F. Supp. at 75).

The provision for preserving jars of glass in heading 7010 was considered in Myers, supra. That case concerned jars with wire bail and rubber ring closure systems. The Court found the jars to be classifiable under the provision for "preserving jars of glass" in 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. [969 F. Supp. at 74]

In this case, item #s 100450, 100460, 100470, each with a wire bail and trigger, rubber ring closure system, are classifiable in accordance with Myers, supra. That is, the articles meet the 3-part test of Myers in that the glass walls of the jars are relatively thick, the closure system provides the ability to form and maintain a hermetic
seal, and the jars have potential for reuse as canning or preserving jars. Based on Myers and the criteria therein, we conclude that these articles are described in the eo nomine provision "preserving jars of glass" in heading 7010, HTSUS. Item #s 100450, 100460, 100470, each with a wire bail and trigger, rubber ring closure system, are classified in subheading 7010.90.50, HTSUS.

As stated above, we have reconsidered this analysis and the conclusions therefrom derived. The proper analysis and conclusion follows.

ISSUE:

Whether the empty glass jars with wire bail and trigger, rubber ring closure systems are classifiable eo nomine as preserving jars of glass under heading 7010, HTSUS, or glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under heading 7013, HTSUS?

LAW and ANALYSIS:

Classification of merchandise under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The HTSUS headings and subheadings 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.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). The article at issue is an empty jar of relatively small size and capacity. While the use of the article is considered in the analysis (see below), the size, characteristics and appearance of the article are also considered in determining its classification.

The provision for preserving jars of glass in heading 7010 is an eo nomine provision (Myers v. United States, 969 F. Supp. 66, 71-73 (CIT 1997)). The provision in heading 7010 for containers "of a kind used" for the conveyance or packing of goods and the provision in heading 7013 for glassware "of a kind used" for table or kitchen purposes are "principal use" provisions (Group Italglass U.S.C., Inc. v. United States, 17 CIT 226 (1993)). As the CIT determined that the eo nomine provision includes canning and preserving jars, i.e., those designed to produce a hermetic seal, we consider that alternative first. If the merchandise is classifiable under heading 7010, it cannot be classified under heading 7013, because of the specific parenthetical provision to that effect in heading 7013 (Myers, 969 F. Supp. at 75).

The provision for preserving jars of glass in heading 7010 was considered in Myers, supra. That case concerned jars with wire bail and rubber ring closure systems. The Court found the jars to be classified under the provision for "preserving jars of glass" in 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. [969 F. Supp. at 74]

In reaching its conclusion, the Court observed that “storage jars are not designed in such a manner that a hermetic seal, which prevents air from entering the head space of the jar, can be formed between the jar and the lid.” Id. at 71.

In Headquarters Ruling Letter (“HQ”) 961205, dated March 12, 1999, we recited
the following rules vis-à-vis eo nomine provisions:

"An eo nomine designation is one which describes a commodity by a specific name, usually one well known to commerce." 2 R. Sturm, Customs Law and Administration § 53.2 (3rd Edition 1990).

The common meaning of an eo nomine designation is determined by the meaning it had at the time of enactment of the tariff act. United States v. BragerLarsen, 36 C.C.P.A. 1, 34, C.A.D. 388 (1948); Davies Turner & Co. v. United States, 45 C.C.P.A. 39, C.A.D. 669 (1957). In their determination of what this "common meaning" encompasses, Customs and the courts may examine the use to which the imported goods are put. United States v. Quon Quon Co., 46 C.C.P.A. 70, 73, C.A.D. 699 (1959).

Thus, it is proper to take use into account when classifying an article under an eo nomine provision where the common and commercial meaning of the article at the time the tariff schedule was drafted included references to use. Headquarters Ruling Letter (HQ) 950783, dated September 10, 1992, citing Admiral Div. of Magic Chef, Inc. v. United States, 754 F. Supp. 881, (Ct. Int'l Trade 1990) (it is necessary to examine legislative history and other extrinsic sources to determine the common meaning of merchandise); Hummel Chemical Co. v. United States, 29 C.C.P.A. 178, 183, C.A.D. 189 (1941) (tariff terms generally "are not drafted in terms of science, but in the language of commerce, which is presumptively that in common use.").

The articles at issue are significantly smaller in size and capacity than those at issue in Myers. We are cognizant of the fact that strict application of the criteria established by Myers (comparative thickness of the glass, the ability to form and maintain a hermetic seal and the jar’s potential for reuse as a canning or preserving jar) would appear to require that the articles in question be classified under heading 7010, HTSUS. However, we conclude that, based on the size, capacity and appearance of the articles in question, as well as the meaning of eo nomine designations as discussed above, the articles in question would neither commonly nor commercially be referred to as canning or preserving jars; thus falling without the purview of those identifying criteria adopted concerning similar articles considered in Myers, supra. We believe this to be especially telling given that the articles at issue in Myers were capable of holding one and one and a half liters, respectively, of liquid or preserves. It is therefore reasonable to conclude that the articles at issue, capable of holding a mere fraction of the articles in Myers, are not classifiable as preserving jars under heading 7010, HTSUS. Accordingly, the articles are classified under heading 7013, HTSUS.

This determination is consistent with Headquarters Ruling (“HQ”) 960513 dated

August 11, 1997, and HQ 959637 dated December 4, 1997. In HQ 960513, a two liter capacity jar with a bail and trigger closure system was classified under heading 7010, HTSUS. Similarly, in HQ 959637, a 750 ml capacity jar with a bail and trigger closure system was classified under heading 7010, HTSUS, and a small decorative bottle with a 50 ml capacity and wire bail and trigger, rubber ring closure system was classified under heading 7013, HTSUS.

HOLDING:

The glass articles at issue, model numbers VE 02003716/100450 ( Vaso Le Carre, 200 ml capacity); VE 02002797/100460 (Vaso Le Carre, 350 ml capacity); and VE 8000101/ 100470 (Vaso Le Carre, 500 ml capacity) are classified as 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: other: under subheading 7013.39, HTSUS, with the eight digit designation to be determined by the value of the articles.

Although there is no consequence of this action with regards to protest 5201-00-100573, future imports occurring on or after this ruling's effective date should be classified consistently with this ruling.

EFFECT ON OTHER RULINGS:

HQ 965200 is modified as it pertains to glass articles with wire bail and trigger, rubber ring closure systems. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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