HQ 951721

January 12, 1993

CLA-2 CO:R:C:M 951721 NLP

CATEGORY: Classification

TARIFF NO.: 7013.39

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