CLA-2 CO:R:C:M: 953952 MMC
Area Director
New York Seaport Area
U.S. Customs Service
6 World Trade Center-Rm 423
New York, New York 10048
RE: Protest 1001-92-103228; Glass 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 Area Director:
The following is our response to your request for further
review of Protest 1001-92-103228 concerning your actions in
classifying and assessing duty on various glass jars under the
Harmonized Tariff Schedule of the United States (HTSUS). Samples
and literature were provided. Information regarding the principal
use of styles 978526 and 978693 presented by the protestant in the
September 27, 1993, meeting in this office was also considered.
FACTS:
The products at issue consist of glass jars, described as
follows:
Style 968169
Review of a provided sample indicates that this article is a
375 gram, 10 sided jar with a metal screw top lid. Painted on the
lid are the words "Confiturier Le Parfait" various pieces of fruit,
and a blank label for the user to indicate what the jar contains.
Styles 900447, 900468, 900485, 900496, and 900504
These are described as LPS terrine jars with metal bail and
trigger assembles and a rubber seal. They are sold in 200, 350,
500, 750 and 1000 gram sizes.
Styles 978526 and 978693
These are 102 centiliter bottles. They have a small lip with
no flange, a long narrow neck and a wide body. They are similar in
appearance to a milk bottle. Style 978693 is imported with a white
plastic snap on lid. In the September 27, 1993, meeting protestant
indicated that a significant amount of the subject bottles are
filled with various food products for retail sale after
importation.
Styles 901706, 968262, 968280 and 968413
These are threaded flange jars with plastic lids. They come
in the following sizes; 15 ounces, 1, 2, and 3 liters.
Protestant distributes all of the jars by two different
methods. Large quantities of jars, e.g., full container loads are
distributed directly to retailers or industrial users. Smaller
quantities are distributed through wholesalers who then sell small
amounts to either retailers or industrial users.
Protestant has provided an analysis of its distribution of the
milk bottles and the 1, 2, and 3 liter threaded flange jars.
Between 1991 and 1993, 11.28% of the milk bottles were sold to
retailers, 78.95% were sold to industrial users and 9.77% were
uncategorizable. Between 1991 and 1993, none of the 1, 2, and 3
liter flange jars were sold to wholesalers. 91.28% of the 1 liters
were sold to retailers and 8.72% were sold to industrial users.
90.38% of the 2 liters were sold to retailers and 9.62% were sold
to industrial users. 92.44% of the 3 liter samples were sold to
retailers and 7.56% were sold to industrial users.
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 February 2 and 14 of
1992 under subheading 7013.39.20, HTSUS, or 7013.99.50, HTSUS, as
glassware of a kind used for table or kitchen purposes. The
protest was timely filed on May 6, 1992.
The subheadings under consideration are as follows:
7010.90.50 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:[o]ther:
[o]ther containers (with or without their
closures) Free
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.
30%
ISSUE:
Whether the various 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.
Style 968169
Protestant states that these jars are classifiable under
heading 7010, as part of the class "preserving jars of glass". We
disagree. The sample provided uses a screw on lid. This is not a
closure consistent with preserving jars of glass. Neither is this
jar classifiable under heading 7010, as part of the class "glass
jars of a kind used for the conveyance or packing of goods". No
evidence has been presented to indicate that the subject jars are
principally used to commercially convey goods or that an ultimate
purchaser would discard the jar after the initial conveyance or
packing use.
Evidence presented indicates that these jars are principally
used for home storage. The various pieces of painted fruit on the
lid create a decorative motif consistent with a kitchen decor.
Providing a painted blank space for labeling the contents of the
jar indicates that these jars will be sold to a consumer for
storage purposes. If they were to be sold for commercial use,
there would be no need to provide a label space, as the retailer
would clearly indicate, by labeling the glass jar itself, what was
provided.
Because these jars' characteristics are consistent with the
characteristics of household storage jars, we find that they are
classifiable under subheading 7013.39., HTSUS. Classification to
the 8 digit level will depend upon the value of the jar.
Styles 900447, 900468, 900485, 900496, and 900504
Protestant asserts that these jars are classifiable as
preserving jars of glass. We agree. These jars' volumes are
within the .23 liter to 2.2 liter requirement for preserving jars
of glass. Additionally, their shapes are not inconsistent with a
preserving jar of glass. Therefore, they are classifiable under
subheading 7010.90.50, HTSUS, as preserving jars of glass.
Styles 978526 and 978693
Protestant asserts that the milk bottles are classifiable as
containers of a kind used for the conveyance or packing of goods.
We agree. While these bottles do have some household storage
characteristics, e.g., imported with lids, we are of the opinion
that these bottles are principally used to convey goods. Any
possible use after the initial conveyance of goods appears, in this
instance, to be fugitive. Additionally, protestant's distribution
numbers indicate that a significant amount of the bottles are sold
to industrial users. Protestant has indicated that these
industrial users fill a significant amount of the jars with
articles. The filled jars are then conveyed to an ultimate
purchaser through retail sale.
Styles 901706, 968262, 968280 and 968413
Protestant asserts that the jars are of the class "glass jars
of a kind used for the conveyance or packing of goods". We
disagree. The evidence presented indicates that the articles are
principally used as household storage articles. Furthermore, while
the jars do have a physical appearance similar to some conveyance
and packing jars, 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.
According to protestant, the jars are imported empty and as
the sample indicates, with their lids. Additionally, a significant
number of them are sold to retailers. These are all
characteristics consistent with jars belonging to the class
"glassware of a kind used for table or kitchen purposes".
Therefore, we find that these styles are classifiable under
subheading 7013.39, 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 granted in part for styles 900447, 900468,
900485, 900496, 900504, 978526, 978693 and denied in part for
styles 968169, 901706, 968262, 968280 and 968413.
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
Commercial Rulings Division