HQ 951991

March 2, 1993

CLA-2 CO:R:C:M 951991 NLP

CATEGORY: Classification

TARIFF NO.: 7010.90.50

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