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HQ 966873




February 9, 2004

CLA-2 RR:CR:GC 966873 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.50

Ms. Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Classification of glass jars with wire bail and trigger, rubber ring closure system

Dear Ms. Friedman:

This is in reply to your letter, dated October 27, 2003, on behalf of Arc International, Inc., in which you request a classification ruling, under the Harmonized Tariff Schedule of the United States (“HTSUS”), concerning certain empty glass jars with wire bail and trigger, rubber ring closure systems. Descriptive literature and a sample were provided for our consideration.

FACTS:

You describe the articles at issue as “Luminarc” glass preserving jars in two sizes: 500 ml and 750 ml capacity, and “Hifi” glass preserving jars of 200 ml, 350 ml and 750 ml capacity, both styles with wire bail and trigger, rubber ring closure systems. You state that the jars at issue are manufactured with glass that is thicker than that used in jars intended for packing and conveyance.

You elaborate upon the nature of the articles by stating that they have a wire bail and trigger mechanism and a replaceable rubber ring gasket (see Headquarters Ruling Letter (“HQ”) 958095, dated November 6, 1995: “the [bail and trigger] closure system consists of a metal loop clamp placed around the neck of the jar, a rubber gasket placed on the inside lip of the lid, and a wire fastener placed on the outside top rim of
the lid. The jar is closed by inserting the wire lid fastener into the metal loop clamp and pressing down on the clamp. This locks the lid in place.”). Both styles are designed to create a vacuum seal every time the articles are used for preserving. After the covers of the jars are closed, the spring holds the cover tightly against the seal, preventing water from entering the jar during processing. “Processing” connotes filling the jars with the foodstuff to be preserved and submerging the filled container in boiling water. The bail and trigger mechanism allows air to release from the container, and acts to create a vacuum as the container cools. The jars can be reused with the replaceable gaskets.

You state that the articles will be marketed as preserving jars and contend that they should be classified under subheading 7010.90.50, HTSUS, which provides for preserving jars. You state that the jars are readily distinguishable from those classified under heading 7013, HTSUS, in Headquarters Ruling Letter (“HQ”) 966256, as published in the Customs Bulletin, Volume 37, Number 38, on September 17, 2003.

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 as 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.

As you note in your submission, the provision for preserving jars of glass in heading 7010, HTSUS, 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, HTSUS, (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).

The 750 ml capacity articles at issue are similar in size and capacity to those at issue in Myers; like those in Myers, the articles are capable of holding approximately one liter of liquid or preserves. The uncontroverted information presented establishes that the articles with smaller capacities, viz. those with 200 ml, 350 ml and 500 ml capacities, are designed and manufactured for repeated use as preserving jars. Thus, 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 enumerated therein, we conclude that these articles are described in the eo nomine provision "preserving jars of glass" in heading 7010, HTSUS.

We reasoned in HQ 966256 that the size, capacity and appearance of the articles led us to conclude that they were classified under heading 7013, HTSUS, as opposed to heading 7010, HTSUS. While the Myers decision did not explicitly include size, capacity and appearance in its analysis, we inferred from the conclusion in Myers that in order for an article to be recognized and referred to (eo nomine) as a preserving jar, the articles in question must appear to be such an article. That is, given the parameters of the term “preserving jars” set forth by Myers, the articles under consideration must bear the enumerated characteristics of and be readily recognizable as that type of article; otherwise the articles would be called something else and fall outside of the eo nomine designation. Plainly stated, the jars must look like, resemble or appear to be a preserving jar in order to be recognized and referred to as such. The appearance of and the information presented concerning the articles classified in HQ 966256 did not establish ipso facto that those articles were preserving jars. Such conclusions can only be made on a case-by-case basis.

It is therefore reasonable to conclude that the articles at issue, bearing the three essential characteristics enumerated in Myers, are classifiable as preserving jars under heading 7010, HTSUS. Classification under heading 7013, HTSUS, is therefore precluded (see above).

This determination is consistent with 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.

HOLDING:

The glass articles at issue, the “Luminarc” glass preserving jars in two sizes: 500 ml and 750 ml capacity, and “Hifi” glass preserving jars of 200 ml, 350 ml and 750 ml capacity, both with wire bail and trigger, rubber ring closure systems, are classified as preserving jars of glass, other containers (with or without their closures), under subheading 7010.90.50, HTSUS.

Sincerely,

Myles B. Harmon, Director

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