HQ 956470

September 28, 1994

CLA-2 CO:R:C:M: 956470 MMC

CATEGORY: Classification

TARIFF NO.: 7013.39

District Director

U.S. Customs Service

PO Box 37260

6269 Ace Industrial Drive, Cudahy WI.

Milwaukee, WI 53237-2337

RE: Protest 3701-94-100021; Frosted glass storage 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 District Director:

The following is our decision regarding further review of

Protest 3701-94-100021 concerning your action in classifying and

assessing duty on frosted glass storage jars under the Harmonized

Tariff Schedule of the United States (HTSUS). Samples of the

subject articles were provided.

FACTS:

The subject article is described as a frosted crock. The

samples provided are 1 liter glass jars with metal bail and trigger

closures. One is frosted black and the other white. They are not

decorated nor do they contain any design in the glass. According

to protestant, the jars can be used as storage jars (mainly for

general use).

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 January 7, 1994,

under subheading 7013.39, HTSUS, as glassware of a kind used for

table or kitchen purposes. The protest was timely filed on April

7, 1992.

The headings under consideration 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

7013 \[g\]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

ISSUE:

Whether the frosted 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.

Protestant asserts that the jars are either of the class

\"glass containers of a kind used for the conveyance or packing of

goods\" or the class \"preserving jars of glass\". We disagree. 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. Additionally, while the jar does have a closure consistent

with some of the articles belonging to the class \"preserving jars

of glass\", their color prevents them from being considered typical

Mason type jars. Mason jars used for canning are always clear so

the contents may be viewed. Furthermore, no evidence has been

presented that the jars are principally used or even sold for

preserving purposes.

The evidence presented indicates that the articles are

principally used as household storage articles. Protestant states

that \"they \[the frosted glass crocks\] can be used as storage jars

(mainly for general use)\". Additionally, the sample indicates that

the crock has several of the characteristics which are indicative

of household storage jars. They are made of ordinary glass which

has been frosted. Contrary to protestant\'s assertion, their solid

black or white color does create a decorative motif consistent with

a kitchen decor. Finally, protestant has recognized their use in

the trade as a household storage article and they are imported with

their closure.

For the foregoing reasons, we find the subject jars are

classifiable under subheading 7013.39, HTSUS, 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 denied. The frosted glass crocks are

classifiable under subheading 7013.39, HTSUS. Their corresponding

column one duty rate will be determined by their value.

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