CLA–2 OT:RR:CTF:TCM H127116 AMM
Barbara Dawley
Meeks, Sheppard, Leo & Pillsbury
1735 Post Road, Suite 4
Fairfield, CT 06824
RE: Reconsideration of New York Ruling Letter N105115; Tariff Classification of Snapware glass storage articles
Dear Ms. Dawley,
This is in response to your request for reconsideration, dated October 6, 2010, made on behalf of Snapware Corporation (Snapware), of New York Ruling Letter (NY) N105115, dated June 4, 2010, which pertains to the classification of glass storage jars with plastic lids, under the Harmonized Tariff Schedule of the United States (HTSUS). In reaching our decision, we have taken into consideration the samples provided, your original submission, dated October 6, 2010, and your supplemental submission, dated January 12, 2011.
FACTS:
In NY N105115, CBP considered four different glass storage articles. Three glass storage articles (a 40 ounce item, a 68 ounce item and a 96 ounce item) had plastic plated lids and one glass storage article (a 102 ounce item) had a plastic non-plated lid. The value of each of the glass storage articles with plastic plated lids is over three dollars but not over five dollars, and the value of the glass storage article with the non-plated plastic lid is not over three dollars.
Each glass jar is made of lead-free glass with thicknesses ranging between 3.5mm and 4mm. Each glass jar includes a plastic lid. The lid consists essentially of four parts. The base ring is a plastic ring that is screwed on top of the glass jar. This ring has a large opening in the middle, such that a person’s hand could fit inside the jar through the opening. The top lid is designed to interlock with the base ring so that when it is closed, the contents of the jar are not accessible. The top lid is connected to the base ring with a hinge, and a snap closure on the opposite side from the hinge holds the top lid in place. When the lid is screwed onto the glass jar, the end user can open the plastic lid and retrieve the contents of the jar without unscrewing it. The lids also include two thermoplastic elastomer (TPE) seals. One seal fits between the base ring and the glass jar. The other seal fits between the two interlocking surface of the base ring and the top lid. Snapware does not sell replacement lids or gaskets for these products.
CBP classified the products with the plastic plated lids under subheading 7013.49.50, HTSUS, which provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes …: glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: other: valued over three dollars each: other: valued over three dollars but not over five dollars each”. CBP classified the product with the non-plated plastic lid under subheading 7013.49.20, HTSUS, which provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes …: glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: other: valued not over three dollars each”.
ISSUE:
What are the proper classifications of the instant Snapware containers under the HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule 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 GRIs may then be applied.
The 2012 HTSUS provisions at issue 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)
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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:
7013.49 Other:
Other:
7013.49.20 Valued not over $3 each
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Valued over $3 each:
Other:
7013.49.50 Valued over $3 but not over $5 each
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GRI 3 states:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them [*7] their essential character, insofar as this criterion is applicable.
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN (VIII) to GRI 3(b) states: “The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.”
The EN to Heading 70.10 states, in pertinent part: “The heading also includes preserving jars of glass.”
The EN to Heading 70.13 states, in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
(1) Table 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.
* * *
Articles of glass combined with other materials (base metal, wood, etc.), are classified in this heading only if the glass gives the whole the character of glass articles.
* * *
In NY N105115, CBP classified the instant merchandise under heading 7013, HTSUS, which provides, in pertinent part, for: "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes". You argue that the instant merchandise is properly classified under heading 7010, HTSUS, which provides, in pertinent part, for: "[P]reserving jars of glass".
In support of your position, that the instant products are properly classified in heading 7010, HTSUS, you cite to the case of Myers v. United States, 969 F.Supp. 66 (Ct. Int'l. Trade 1997). In this case, the Court of International Trade (CIT) considered whether “Le Parfait Super glass jars and [terrines] manufactured by VMC Grand Public in Riems, France” were considered "preserving jars of glass" under heading 7010, HTSUS. The products at issue consisted of a glass jar and glass lid, a wire bail and trigger closure mechanism, and a natural rubber gasket. Id., at 68. The CIT first held that ‘preserving jars of glass’ is an eo nomine provision, not a use provision. Id., at 73. The CIT then found three fundamental features which distinguish "preserving" jars from "packing and conveyance" jars and "storage" jars. The three features 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.” Id., at 74. The CIT found that the products at issue had all three of these features, based on “the thickness of the glass in the subject merchandise, the ability of consumers to reuse the subject merchandise for home canning and preserving, and the ability of the subject merchandise to form a vacuum and reduce significantly the exchange of air between the jar's headspace and the outside environment.” Id.
You allege in your original submission that the instant products meet all three of the criteria set forth in Myers, and should therefore be classified under heading 7010, HTSUS. In regard to the first criteria, the CIT did not establish a minimum thickness requirement for the glass. The CIT stated:
While both packing and conveyance and preserving jars have the ability to form and maintain a hermetic seal, the walls of the preserving jars are thicker and contain more glass. This characteristic strengthens the jar and facilitates its reuse, whereas packing and conveyance jars have thinner walls and are not intended to be reused in home canning or preserving applications.
Myers, 969 F.Supp. at 74. You claim that the Snapware jars are made from lead-free glass with thicknesses ranging from 3.5mm to 4mm, and that this thickeness satisfies the requirement of Myers. CBP does not dispute this claim.
The second criteria is “the jar's ability to form and maintain a hermetic seal”. Myers, 969 F.Supp. at 74. The word “hermetic” is not defined in the HTSUS or in the Explanatory Notes. The CIT defines “hermetic seal”, as that “which prevents air from entering the head space of the jar”. Myers, 969 F.Supp., at 71. This is consistent with other authoritative sources. The phrase "hermetic seal" is defined as “air tight closure of a vessel ...". See The Oxford English Dictionary (available at ). “Airtight” is defined as “so tight as to be impenetrable or nearly so to air”. See Webster’s Third New International Dictionary, 1993. CBP has determined that the seal on the Snapware product is airtight, so this criteria is satisfied. See CBP Lab Report Nos. NY201100030 and NY201100034, both dated January 14, 2011.
The third criteria is “the jar's potential for reuse as a canning or preserving jar.” Myers, 969 F.Supp. at 74. The CIT stated that “[b]oth packing and conveyance and preserving jars prevent food from decomposing.” Myers, 969 F.Supp. at 74. Most foods are perishable. Food preservation is intended to prevent spoilage, loss of quality, or the creation of deadly diseases such as botulism. According to the USDA Complete Guide to Home Canning, 2009 Revision (USDA Guide), "canning" preserves foods by removing oxygen, destroying enzymes, and preventing the growth of undesirable bacteria, yeasts, and molds. See USDA Guide, at Guide 1, p. 5. The USDA Guide also states that "Proper canning practices include: carefully selecting and washing fresh food, peeling some fresh foods, hot packing many foods, adding acids (lemon juice or vinegar) to some foods, using acceptable jars and self-sealing lids, [and] processing jars in a boiling-water or pressure canner for the correct period of time." Id., at Guide 1, p. 5.
The USDA Guide describes the process of preservation. It recommends only the use of Mason style jars, which consist of a glass jar with a two piece lid system that incorporates a rubber sealing system. USDA Guide, at Guide 1, pp. 13-16. The USDA Guide also describes two different processes for preserving food in Mason Jars, using either boiling water or pressure. Id., at Guide 1, pp. 17-25. Even though bail and wire trigger closure jars, like the products that were the subject of Myers, are not recommended for use in canning or preserving by the USDA Guide, other sources indicate that it is still possible to use them as such.
The Snapware product is a container that has a glass body and a patented plastic lid incorporating two thermoplastic elastomer (TPE) seals. Food can be placed inside the container. Once the lid is closed, it is airtight. The CBP Laboratory attempted to preserve tomatoes using two samples of the instant merchandise, which you provided, in accordance with the "boiling water" process described in the USDA Guide, at Guide 1, p. 18. After 30 days, there was no spoilage or decomposition of the tomatoes stored in the Snapware jars. See CBP Lab Report Nos. NY201100030S and NY201100034S, both dated October 20, 2011.
However, Myers requires that the jars have the “potential for reuse” as a canning or preserving jar. Myers, 969 F.Supp. at 74. Mason style jars, which are considered to be canning or preserving jars, consist of a glass jar with a two piece lid system (a flat lid and a screw ring) that incorporates a rubber sealing system. See U.S. Patent No. 102,913 (Mason, 1870). The flat lids can only be used once; they are prone to bending when the seal is broken, and the gasket material is generally designed for a single use. With respect to bail and wire trigger jars, such as those considered in Myers, the CIT noted that “the potential for [reusing] the subject merchandise is illustrated by the manufacturer’s sale of replacement gaskets.” Myers, 969 F.Supp. at 74.
Snapware does not sell replacement lids or seals for its products. The data sheet for Snapware’s gasket material indicates that it “may be used in contact with non-fatty foods as closure sealing gaskets in accordance with provisions of 21 C.F.R. §177.1210 of the Federal Food, Drug and Cosmetic Act”, and that it “complies with 21 C.F.R. §177.2600 ‘Rubber Articles Intended for Repeated Use’”. However, both of these regulations describe what material a gasket can be made of, not its performance characteristics. Given that Snapware does not sell replacement parts for these products, and that gaskets are intended for a single use, there is no evidence that the instant merchandise has the “potential for reuse” as a canning or preserving jar, as required by Myers. Therefore, because the three criteria of Myers are not met, the instant products cannot be classified as a “canning or preserving jar” of heading 7010, HTSUS.
Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(a) is not applicable here because the merchandise is not incomplete or unfinished. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies. Furthermore, the EN to heading 70.13 states “Articles of glass combined with other materials …, are classified in this heading only if the glass gives the whole the character of glass articles”. The Snapware jars consist of a glass body, classifiable in Chapter 70, and a plastic lid, classifiable in Chapter 39.
According to GRI 3(b), “mixtures, composite goods consisting of different materials or made up of different components … shall be classified as if they consisted of the material or component which gives them their essential character …”. Thus, to determine under which heading to properly classify the entire Snapware container, we must determine which component gives the article its essential character: the glass bottle, or the plastic lid.
Although the GRIs do not provide a definition of “essential character,” EN (VIII) of GRI 3(b) provides guidance. According to this EN, the essential character may “… be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” This is known as the “essential character test” and the application of this test requires a fact-intensive analysis. Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1337 (Fed. Cir. 2007). Many factors should be considered when determining the essential character of an article, including but not limited to those factors enumerated in EN (VIII) to GRI 3(b). Id.
CBP has long found that the essential character of glass containers with non-glass lids is imparted by the glass container, and classified these products under heading 7013, HTSUS. See NY N100999 (glass jar with plastic lid), dated May 7, 2010; NY N066315 (glass jar with aluminum lid), dated July 17, 2009; NY N065020 (glass spice jar with plastic lid), dated July 10, 2009; NY N008381 (glass jar with wooden lid), dated April 6, 2007; NY M87181 (glass storage bowl with plastic lid), dated November 22, 2006; NY G83114 (glass salt and pepper shakers with metal lids), dated October 30, 2000; NY F84673 (glass jar with cork lid), dated April 12, 2000; and HQ 953197 (glass salt and pepper shakers with metal lids), dated April 28, 1993.
The glass jar component comprises the bulk and weight of the article, is the component that provides the primary function of the composite article, and could be reasonably perceived by a customer to perform the primary function of the article of storage. Upon consideration of the totality of these factors in favor of the glass jar, CBP finds that the essential character of the Snapware containers is imparted by its glass jar. Therefore, they are classified under heading 7013, HTSUS. Specifically, the three containers valued over three dollars but not over five dollars are classified under subheading 7013.49.50, HTSUS, which provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes …: glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: other: valued over three dollars each: other: valued over three dollars but not over five dollars each”, and the container valued under three dollars is classified under subheading 7013.49.20, HTSUS, which provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes …: glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics: other: valued not over three dollars each”.
HOLDING:
By application of GRI 3(b), The Snapware containers are classified under heading 7013, HTSUS. Specifically, the three containers valued over three dollars but not over five dollars are classified under subheading 7013.49.50, HTSUS, which provides for “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: valued over three dollars each: other: valued over three dollars but not over five dollars each”. The column one, general rate of duty for these three products is 15% ad valorem. The container valued under three dollars is classified under subheading 7013.49.20, HTSUS, which provides for “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: valued not over three dollars each”. The column one, general rate of duty for these three products is 22.5% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
New York Ruling Letter N105115, dated June 24, 2010, is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division