HQ 960513

August 11, 1997

CLA-2 RR:TC:MM 960513 PH

CATEGORY: Classification

TARIFF NO.: 7010.90.50

Port Director

U.S. Customs Service

300 South Ferry Street

Terminal Island, CA 90731

RE: Protest 2704-96-100995; glass preserve jars; glass jars for

conveyance or packing of liquids or of solid products;

household glass storage articles; wire bail and rubber ring

closure system; principal use; eo nominee; 7010.90.50;

7013.39.20; HRL 953282; HRL 088020; HRL 951721; HRL 956470;

HRL 953952; T.D. 96-7; Myers v. United States, CIT Slip Op.

97-75; Group Italglass U.S.A., Inc. v. United States, 17 CIT

226 (1993); Commercial Aluminum Cookware Co. v. United

States, 938 F. Supp. 875 (CIT 1996)

Dear Port Director:

This is in response to Protest 2704-96-100995, which

pertains to the tariff classification of certain glass jars with

wire bail and rubber ring closure systems under the Harmonized

Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise under protest consists of two liter glass

jars, with a glass lid, rubber gasket, and wire bail. The

merchandise is described in invoices in the file as \"CANET

SUNKIST CANNING JAR 2L\[.\]\"

The sample jar provided bears a painted label, with an

illustration of the sun, sky and green background and the words

\"CALIFORNIA PISTACHIOS\[,\]\" \"Sunkist\[,\]\" \"NATURALLY OPENED\[,\]
DRY

ROASTED\[,\] Tree-ripened\[,\] Salted In-shell\[,\]\" \"NET WT. 32 OZ.
(2

LBS/907G)\[.\]\" The sample is a traditionally-shaped jar. It has

side mold seams, a knurled bottom surface, a number (5), letter

(A), and the size (2L) on the bottom. The jar appears to be

approximately as thick as standard home canning jars.

According to the protest, the jars are used by Sunkist for

the conveyance of pistachio nuts. Sunkist, described as the

packer/distributor, packs the jars with pistachio nuts, seals

them with plastic packaging, and sends them to retail markets for

sale to consumers. The jars are not available for sale to

consumers empty.

Three entries of the merchandise are included in the

protest. According to the file and Customs records, the dates of

entry of the merchandise are September 14, September 22, and

October 9, 1995. According to the Immediate Delivery form

(Customs Form 3461) for the first entry, the importer classified

the merchandise under subheading 7010.90.50, HTSUS. The Entry

Summary forms (Customs Form 7501) show classification of the

merchandise under subheading 7013.39.20. The entries were

liquidated, respectively, on December 29, 1995, and January 12

and 26, 1996, with classification under the latter subheading.

In a timely protest (filed on March 26, 1996) the protestant

contends that the merchandise is properly classified under

subheading 7010.90.50, HTSUS, as glass containers for the

conveyance and packing of goods.

The competing subheadings, as of the time under

consideration, are as follows:

7013.39.20: \[g\]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.

The 1995 general column one rate of duty for goods classifiable

under this provision is 29.2% ad valorem.

7010.90.50: \[c\]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: \... \[o\]ther containers (with or

without their closures).

Goods classifiable under this provision receive duty-free

treatment.

ISSUE:

Are the subject jars classified as preserving jars of glass

under subheading 7010.90.50, HTSUS, or other glassware under

subheading 7013.39.20, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is

governed by the General Rules of Interpretation (GRI\'s). GRI 1,

HTSUS, states, in part, that \"for legal purposes, classification

shall be determined according to terms of the headings and any

relative section or chapter notes\....\"

In Myers v. United States, CIT Slip Op. 97-75, decided June

17, 1997, the Court applied the competing tariff provisions in

this case to glass jars similar to those under consideration.

One kind of the jars ruled upon in Myers is described in HRL

953282, dated February 16, 1993. The jars are described as

follows:

The products at issue consist of 1 liter and 1.5 liter

glass jars. The jars are imported with a glass lid, rubber

gasket, wire bale, and decorative blue ribbon. The jars

have a country motif band painted in blue, pink, green and

yellow around the middle of the jar, which is approximately

2 « inches wide. The name of the food packer, Country

Estate Pecans, is printed within the country motif band in

blue letters.

The jars are used by Country Estate Pecans, a division

of Farmers Investment Company (Farmers), to pack sugar

coated pecans. After the pecans are placed in the jar, the

rubber gasket and wire bale locking device are used to seal

the glass lid. In addition, a plastic tamper-proof seal is

applied through the metal closure. The \[jarred\] pecans are

sold to wholesale clubs. \...

Thus, in all pertinent aspects, the jars considered in Myers

and the jars under consideration in this protest are virtually

identical. In HRL 953282 we concluded that the subject jars were

not classifiable as preserve jars in heading 7010, HTSUS, and

held that they were properly classified under subheading

7013.39.20, HTSUS (see also HRL\'s 088020, January 14, 1991,

951721, January 12, 1993, 956470, September 28, 1994, 953952,

September 21, 1994, and T.D. 96-7).

In Myers the Court found that the jars under consideration,

including those described above, were properly classifiable under

subheading 7010.90.50, HTSUS. The Court came to this conclusion

via the following reasoning. Initially, on the basis of Group

Italglass U.S.A., Inc. v. United States, 17 CIT 226, 228 (1993)

(reconsideration granted in part, 17 CIT 373 (1993), petition for

permission to appeal denied, 9 F. 3d 977 (Fed. Cir. 1993)), and

Commercial Aluminum Cookware Co. v. United States, 938 F. Supp.

875, 882-883 (CIT 1996), the Court found that the tariff term

\"preserving jars of glass\" in heading 7010, HTSUS, is an eo

nomine provision and not a principal use provision, on the basis

that \"\... the three clauses encompassed in \[h\]eading 7010 are

separate independent clauses and the qualifying principal use

language included in the first clause of \[h\]eading 7010, HTSUS,

does not apply to the term preserving jars of glass\'.\" The next

step of the Court was defining the scope of the tariff term

\"preserving jars of glass\" and distinguishing that term from

\"jars \... of a kind used for the conveyance or packing of goods\"

(the principal use provision in the first clause of heading

7010). The Court concluded that:

The three fundamental feature\[s\] which distinguish

preserving\' jars from packing and conveyance\' jars and

storage\' jars 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.

The Court found that the jars before the Court (in all

pertinent respects the same as the jars under consideration in

this protest) met each of the criteria. On the basis of the

limiting language in heading 7013, HTSUS, \"which covers certain

glassware (other than that of heading 7010 or 7018)\[,\]\'\" the

Court found that:

Because plaintiffs have established the merchandise at issue

is properly classifiable under subheading 7010.90.50, HTSUS,

the merchandise clearly cannot be classified under \[h\]eading

7013 because that heading specifically excludes any

merchandise properly classified under \[h\]eading 7010, HTSUS.

Although we have ruled that jars such as those under

consideration are classified under subheading 7013.39.20, HTSUS

(see HRL\'s 953282, 088020, 951721, 956470, 953952 and T.D. 96-7),

the merchandise under consideration in this case is virtually

identical in all pertinent respects to that considered in Myers.

The merchandise in this case meets the criteria set forth in

Myers for \"preserving jars of glass\" to the same extent that the

jars in Myers met those criteria. Accordingly, we must follow

Myers in this protest.

HOLDING:

The jars at issue (traditionally-shaped two liter glass jars

with a glass lid, rubber gasket, and wire bail, of approximately

the thickness of standard home canning jars, and bearing a

permanently painted label) are classifiable as preserving jars of

glass under subheading 7010.90.50, HTSUS, in accordance with

Myers v. United States.

The protest should be GRANTED. In accordance with Section

3A(11)(b) of Customs Directive 099 3550-065, dated August 4,

1993, Subject: Revised Protest Directive, you should mail this

decision, together with the Customs Form 19, to the protestant no

later than 60 days from the date of this letter. Any

reliquidation of the entry or entries in accordance with the

decision must be accomplished prior to mailing of 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 Rulings Module in

ACS and the public via the Diskette Subscription Service, the

Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director, Tariff

Classification Appeals Division