CLA-2 CO:R:C:M 951991 NLP
District Director
United States Customs Service
1 East Bay Street
Savannah, GA 31401
RE: Protest no. 1703-92-100024; glass jars for conveyance or
packing of liquids or of solid products; household glass
storage articles; Additional U.S. Rule of Interpretation
1(a); principal use; heading 7010; Explanatory Notes to
headings 7010 and 7013; Kraft, Inc., v. U.S.; HRLs
953282, 081805, 087727, 087779, 088020, 951721
Dear Sir:
This is in response to Protest and Request for Further
Review No. 1703-92-100024, dated February 14, 1992, concerning
the classification of glass jars under the Harmonized Tariff
Schedule of the United States (HTSUS). A sample was submitted
for our examination.
FACTS:
The products at issue are green tinted glass jars with cork
tops. They each hold 314 ml and are molded in the shape of small
wine vats. The importer states that the jars are manufactured in
Italy and imported empty. They are accompanied by cork stoppers
that are packaged separately. In the U.S. a nut and bulk food
packer company packs the jars with cashews or other types of
nuts, seals the cork with a tamper proof plastic film and affixes
the Four Seasons Corporate logo on the jars. The jars are then
sold to the Four Seasons Hotels and Resorts to supply their mini
bars. Only guests at the Four Seasons Hotels and Resorts can
purchase the jars filled with nuts.
Upon liquidation, the glass jars were classified in
subheading 7013.99.50, HTSUS, which provides for "[g]lassware of
a kind used for table, kitchen, toilet, office, indoor decoration
or similar purposes (other than that of heading 7010 or 7018):
[o]ther glassware: [o]ther: [o]ther: [v]alued over $0.30 but not
over $3 each."
The importer claims that the glass jars are classified in
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; preserving jars of glass; stoppers, lids and
other closures of glass: [o]ther containers (with or without
their closures)." The importer argues that the glass jar is
used solely to preserve nuts and as it is sold only to hotels it
should be classified in the above subheading.
ISSUE:
Are the glass jars classified as other glassware in
subheading 7013.99.50, HTSUS, or as household storage articles of
glass in subheading 7013.39.20, HTSUS, or as containers for the
conveyance or packing of goods or as preserving jars in
subheading 7010.90.50, HTSUS?
LAW AND ANALYSIS:
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRI's), 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. In the event that the goods cannot be classified solely
on the basis of GRI 1, and if the headings and legal notes do not
otherwise require, the remaining GRI's may be applied, taken in
order. In this case, the two competing headings are 7010 and
7013, HTSUS, which are both considered "use" provisions. A
tariff classification controlled by use (other than actual use)
is governed by the principal use. See, Additional U.S. Rule of
Interpretation 1(a), HTSUS.
Heading 7010, HTSUS, 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;
preserving jars of glass; stoppers, lids and other closures of
glass." In understanding the language of the HTSUS, the
Harmonized Commodity Description and Coding System Explanatory
Notes (ENs) may be utilized. The ENs, although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to
heading 7010 states, on page 933-34, the following:
This heading covers all glass containers of the kinds
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 mould usually
followed by blowing with compressed air. They
generally have a large opening, a short neck (if any)
and as a rule, lip or flange to hold the lid or cap.
Some of these containers, however, may be closed by
corks or screw stoppers.
* * * *
The heading also includes preserving jars of glass.
EN 70.10 also states that the heading does not include decanters,
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.
Numerous glass items used to hold food products are not
classifiable as jars under subheading 7010.90.50, HTSUS, but are
considered to be household storage articles classifiable as
table/kitchenware under subheading 7013.39.20, HTSUS. Subheading
7013.39.20, HTSUS, provides for "[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." EN 7013 states on page 936 that:
This heading covers the following types of articles,
most of which are obtained by pressing or blowing in moulds:
(1) Tableware 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.
Counsel for the protestant contends that Kraft, Inc. v.
United States, Slip Op. 92-93, 26 Cust. Bull. 15 (CIT 1992), is
precedent for classifying the glass jars as containers for the
conveyance or packing of goods in heading 7010, HTSUS. Kraft
dealt with the classification of bear-shaped glass jars (bear
jars) which were used to pack jams and jellies. The bear jars
were imported without a lid. The U.S. Court of International
Trade (CIT) found that the bear jars were not decorative, did not
have a household function in that they were not useable for home
canning or preservation, were used to pack jelly, had
characteristics necessary for food packaging and, although more
elaborate in shape than a straight sided jar, were not more
elaborate than several well known jars used to pack food. The
court also found that the bear jar's acquisition by the consumer
was incidental to the purchase of the jelly packed in it after
importation and that the bear jar's design was merely to attract
the consumer to the jelly. Therefore, the court concluded that
the bear jars were of a class or kind contemplated by item
545.27, Tariff Schedules of the United States (TSUS) (the
precursor provision to heading 7010, HTSUS), which provides for
containers of glass chiefly used for the packaging, transporting,
or marketing of merchandise.
Counsel maintains that like the bear jars in Kraft, the
attractive appearance of the subject jars does not automatically
mean that such jars are no longer packing jars. The jars are
imported empty and without attached lids. Counsel also maintains
that these jars are specifically described by heading 7010,
HTSUS. First, the jars are solely used commercially for the
conveyance and packing of food articles. They are designed and
manufactured to be used as packing jars. The jars are made by
pressure in a mould and compressed air is applied to them in this
process. The jars are also closed with cork stoppers, a type of
closure described in the ENs to heading 7010.
We agree with counsel's position. As the bear jars in
Kraft, while these jars are more elaborate in shape than a
straight-sided jar, they are not decorative or ornamental. See,
Headquarters Ruling Letter (HRL) 953282, dated February 16, 1993,
in which Customs distinguished a 1 liter glass jar and a 1.5
liter glass jar from the jars in Kraft. Customs found that these
jars were decorative; to wit, the country motif band painted
around the jar's middle and the blue ribbon attached to the wire
bale at the jar's top. The jars were also imported with glass
lids, rubber gaskets and wire bales which formed the closure
mechanism/lid. HRL 953282 held that because of the lids, rubber
gaskets, and wire bales, the glass jars were designed for
extended use as storage jars unlike the bear jars in Kraft that
were imported without lids and were not decorative or ornamental
in appearance.
In the instant case, the jars are imported empty and are
packaged in the U.S. and then sold to the Four Seasons Hotels and
Resorts for sale in mini bars in their guest rooms. They are
used commercially for the conveyance and packing of foodstuffs.
Moreover, as the bear jars in Kraft, these jars are not
decorative, they have an attractive appearance as packaging that
attracts the consumers attention and they are not imported with
their closure mechanisms attached. In addition, given the fact
that these jars are purchased in a hotel while one is traveling,
it appears likely that once the nuts are consumed, a traveller
would dispose of the jars and not bring them home to be used at a
later date. Therefore, we are of the opinion that the glass jars
are classifiable as jars used commercially for the conveyance or
packing of food products and they are classified in subheading
7010.90.50, HTSUS.
We note, however, that the instant glass jars are not
classifiable as preserve jars. Various Customs rulings have
established that glass articles holding different volumes than
the typical preserve jars or in different forms than the typical
preserve jars are classifiable in subheading 7013.39.20, HTSUS.
HRL 081805 dated April 11, 1988, held that storage articles
decorated with jelly bean decalcomania were neither preserve jars
nor containers, but were classified as household storage articles
in item 546, TSUS, (the precursor provision to heading 7013,
HTSUS). See also, HRL 087727 dated September 21, 1990, which
held that glass spice jars were not regarded as preserve jars
classifiable in heading 7010, HTSUS, as they were not the size
and shape of typical preserve jars.
Furthermore, we find that the subject jars are
distinguishable from other jars that have been classified as
household storage articles in subheading 7013.39.20, HTSUS. See,
HRL 087779 dated December 27, 1990; HRL 088020 dated January 14,
1991, and 951721 dated January 13, 1993. These cases all held
that the subject glass jars were sized and shaped differently
than commercial jars used to preserve food. They were decorative
household jars that were used as canisters in the kitchen to hold
various types of food. They were also similar to many of the
articles listed in the EN to heading 7013 as they were functional
for the storage of articles of food.
Finally, these glass jars are also not classifiable in
subheading 7013.99.50, HTSUS. The ENs to heading 7013 state, on
page 936, that the heading also includes the following types of
articles:
(4) Glassware for indoor decoration and other
glassware (including that for churches and
the like), such as vases, ornamental fruit bowls,
statuettes, fancy articles (animals, flowers, foliage,
fruit, etc.), table centres (other than those of
heading 70.09), aquaria, incense burners, etc., and
souvenir bearing views.
Though the subject jars have an attractive appearance, it does
not mean that they are regarded as ornamental articles for
classification purposes. They are not glassware used for indoor
decoration. The products under consideration are clearly
articles used for the commercial conveyance or packing of
foodstuffs.
The jars at issue in this case are more akin to the jars
described in Kraft. They are not decorative storage articles to
be used later in the home. Their condition on importation, the
channels of trade through which they pass, their place of
purchase, use, size and shape serve to distinguish these jars as
commercial jars used principally to pack or convey food products.
Thus, the jars are classifiable in subheading 7010.90.50, HTSUS.
HOLDING:
The protest should be allowed in full. 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
Commercial Rulings Division