CLA-2 CO:R:C:M 951721 NLP
District Director
United States Customs Service
6269 Ace Industrial Drive
Milwaukee, WI 53110
RE: Protest No. 3701-92-100020; glass jars for conveyance or
packing of liquids or of solid products; glass preserve
jars; household glass storage articles; heading 7010;
Explanatory Notes to headings 7010 and 7013; HRLs
088020, 087779 and 087727
Dear Sir:
The following is our response to the Protest and Request For
Further Review No. 3701-92-100020, dated March 24, 1992,
concerning the classification of glass jars under the Harmonized
Tariff Schedule of the United States (HTSUS).
FACTS:
The products at issue consist of glass storage jars,
described as follows:
Styles 900196 and 900213 are "Le Parfait" super preserving
jars. They have bail and trigger assemblies and gaskets and are
sold in 1/2 liter and 3/4 liter sizes.
Styles 902262 and 968169 are "Le Parfait" marmalade jars
with plastic pressure fit tops.
Styles 900229, 900239, 900258 and 900279 are "Le Parfait"
super preserving jars with bail and trigger assembles and
gaskets. They are sold in 1, 1-1/2, 2 and 3 liter sizes.
Style 902149 is a "Le Parfait" jam jar with a metal screw
top. This jar has a label on top and it can hold 22 ounces.
Upon entry, the jars were liquidated in subheading 7013.39,
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): [g]lassware of a kind
used for table (other than drinking glasses) or kitchen purposes
other than that of glass-ceramics: [o]ther." The six digit
subheading was determined by the value of the jars. Styles
900196 and 902262 were classified in subheading 7013.39.50,
HTSUS, as they are valued over $3 but not over $5. Styles
900213, 900229, 900239, 900258 and 900279 were classified in
subheading 7013.39.60, HTSUS, as they are valued over $5 each.
Styles 902149 and 968169 were classified in subheading
7013.39.20, HTSUS, as they are valued at not over $3 each.
The importer contends that the glass jars are classified in
subheading 7010.90.5040, 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): [h]olding over 473 ml: [h]aving a wide mouth (38
mm outside diameter and above)." The importer claims that these
jars are sold, purchased and used for the purpose of preserving
food for future use.
ISSUE:
Are the glass jars classified in subheading 7010.90.50,
HTSUS, or in subheading 7013.39, 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.
The two headings at issue here are headings 7010 and 7013,
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 HTS, 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). EN 70.10 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 of
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.
Heading 7013, HTSUS, provides for the following "[g]lassware
of a kind used for table, kitchen, toilet, office, indoor
decoration or similar purposes (other than that of heading 7010
or 7018). The ENs to heading 7013 provide, on page 936, the
following:
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.
Numerous glass articles used to hold food products within
the home are not classifiable as jars in subheading 7010.90.50,
HTSUS, but are considered to be household storage articles
classifiable as table/kitchenware in subheading 7013.39, HTSUS.
For example, Headquarters Ruling Letter 088020, dated January 14,
1991, dealt with the classification of glass storage jars that
were used to hold food. These glass jars were 12 sided and
varied in height from approximately 5-1/2 inches to 14 inches.
They had a metal loop fastener closure and a rubber ring seal.
This ruling stated that heading 7010 "provides for standard size
and shape jars that are used commercially to convey, pack or
preserve foods." HRL 088020 stated that the subject jars were
shaped and sized differently than commercial jars used to
preserve food. They were household jars that were used as
canisters in the kitchen to hold various types of food.
Therefore, as the jars were not the type of jars intended to be
classified under heading 7010, they were classified in subheading
7013.39.20, HTSUS. See also, HRL 087779, dated December 27,
1990, which classified a variety of glass jars, including a
triangle shaped glass storage jar with a metal cover and handle
that was 12-3/4 inches high and a round glass storage jar with a
cork stopper style cover that was 12 inches high, in subheading
7013.39.20, HTSUS. These glass jars were shaped and sized
differently than commercial jars used to preserve food and their
lids did not seal the jars sufficiently to be used commercially.
The subject glass jars are akin to the jars discussed above.
They are not used commercially for the conveyance or packing of
foodstuffs. They are shaped and sized differently than
commercial jars used to preserve food. In addition, the lids
would not seal the jars sufficiently to be used to preserve food
or commercially. They are also not disposable containers.
It is our position that the jars at issue are household jars
that are used to hold food. They are similar to many of the
articles listed in the EN to heading 7013, as they are functional
for the storing of articles of food. The glass jars are,
therefore, classified in heading 7013. Specifically, they are
classified in subheading 7013.39., HTSUS. The eight digit
subheading will vary depending on the value of the jars.
Furthermore, the subject jars are not classifiable as
preserve jars in heading 7010, HTSUS. Various Customs rulings
have confirmed the position that household articles holding
different volumes than the typical preserve jars or in different
forms than the typical preserve jar are classifiable in
subheading 7013.39, HTSUS. See, 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.
Finally, we note that it has come to our attention from the
Assistant Chief Counsel's office that products similar to the
subject glass jars are the subject of pending litigation before
the Court of International Trade in Italglass v. United States.
Consequently, until this litigation is resolved, protests
regarding the classification of this merchandise should be
denied.
HOLDING:
The protest should be denied. 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