Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices 223

Instructions for the SF 424

This is a standard form used by applicants

as a required facesheet for preapplications

and applications submitted for Federal

assistance. It will be used by Federal agencies

to obtain applicant certification that States

which have established a review and

comment procedure in response to Executive

Order 12372 and have selected the program

to be included in their process, have been

given an opportunity to review the

applicant’s submission.

Item and Entry

1. Self-explanatory.

2. Date application submitted to Federal

agency (or State if applicable) & applicant’s

control number (if applicable).

3. State use only (if applicable).

4. If this application is to continue or

revise an existing award, enter present

Federal identifier number. If for a new

project, leave blank.

5. Legal name of applicant, name of

primary organizational unit which will

undertake the assistance activity, complete

address of the applicant, and name and

telephone number of the person to contact on

matters related to this application.

6. Enter Employer Identification Number

(EIN) as assigned by the Internal Revenue

Service.

7. Enter the appropriate letter in the space

provided.

8. Check appropriate box and enter

appropriate letter(s) in the space(s) provided:

—‘‘New’’ means a new assistance award.

—‘‘Continuation’’ means an extension for an

additional funding/budget period for a

project with a projected completion date.

—‘‘Revision’’ means any change in the

Federal Government’s financial obligation

or contingent liability from an existing

obligation.

9. Name of Federal agency from which

assistance is being requested with this

application.

10. Use the Catalog of Federal Domestic

Assistance number and title of the program

under which assistance is requested.

11. Enter a brief descriptive title of the

project, if more than one program is

involved, you should append an explanation

on a separate sheet. If appropriate (e.g.,

construction or real property projects), attach

a map showing project location. For

preapplications, use a separate sheet to

provide a summary description of this

project.

12. List only the largest political entities

affected (e.g., State, counties, cities).

13. Self-explanatory.

14. List the applicant’s Congressional

District and any District(s) affected by the

program or project.

15. Amount requested or to be contributed

during the first funding/budget period by

each contributor. Value of in-kind

contributions should be included on

appropriate lines as applicable. If the action

will result in a dollar change to an existing

award, indicate only the amount of the

change. For decreases, enclose the amounts

in parentheses. If both basic and

supplemental amounts are included, show

breakdown on an attached sheet. For

multiple program funding, use totals and

show breakdown using same categories as

item 15.

16. Applicants should contact the State

Single Point of Contact (SPOC) for Federal

Executive Order 12372 to determine whether

the application is subject to the State

intergovernmental review process.

17. This question applies to the applicant

organization, not the person who signs as the

authorized representative. Categories of debt

include delinquent audit disallowances,

loans and taxes.

18. To be signed by the authorized

representative of the applicant. A copy of the

governing body’s authorization for you to

sign this application as official representative

must be on file in the applicant’s office.

(Certain Federal agencies may require that

this authorization be submitted as part of the

application.)

[FR Doc. 96–69 Filed 1–2–96; 8:45 am]

BILLING CODE 4910–62–P

Federal Aviation Administration

Airport Traffic Control Tower at

Monroe County Airport, Bloomington,

IN

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of change.

Notice is hereby given that on or

about January 7, 1996, the Airport

Traffic Control Tower (ATCT) at

Bloomington, Indiana will convert to a

non-federal operation. The hours of

operation will be 6:30 a.m. to 9:30 p.m.

Services to the aviation public in the

Bloomington area, formerly provided by

the FAA will be provided by the

Midwest ATC Services. This

information will be reflected in the FAA

organization statement the next time it

is reissued.

William C. Withycombe,

Acting Regional Administrator, Great Lakes

Region.

[FR Doc. 96–60 Filed 1–2–96; 8:45 am]

BILLING CODE 4910–13–M

Airport Traffic Control Tower at

Delaware County Airport, Muncie, IN

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of closing.

Notice is hereby given that on

December 31, 1995, the Airport Traffic

Control Tower (ATCT) at Muncie,

Indiana will be permanently closed.

Services to the aviation public in the

Muncie area, formerly provided by

Muncie ATCT, are being provided by

the Indianapolis Center at Indianapolis,

Indiana. This information will be

reflected in the FAA organization

statement the next time it is reissued.

William C. Withycombe,

Acting Regional Administrator, Great Lakes

Region.

[FR Doc. 96–59 Filed 1–2–96; 8:45 am]

BILLING CODE 4910–13–M

The Airport Traffic Control Tower at

South Lake Tahoe, CA; Notice of

Decommissioning

Notice is hereby given that on

December 31, 1995, federal funding will

be withdrawn for the Airport Traffic

Control Tower at South Lake Tahoe,

California. Decommissioning efforts will

be initiated on January 1, 1996. This

information will be reflected in the FAA

Organization Statement the next time it

is reissued.

(Sec. 313(a), 72 Stat. 752; 49 U.S.C. 1354)

Issued in Lawndale, California on

December 20, 1995

Lynore C. Brekke,

Acting Regional Administrator WesternPacific Region.

FR Doc. 96–61 Filed 1–2–96; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF THE TREASURY

Customs Service

[T.D. 96–7]

Tariff Classification of Imported

Glassware

AGENCY: U.S. Customs Service,

Department of the Treasury.

ACTION: Change of practice.

SUMMARY: This document sets forth

Customs position regarding the scope of

three classes of imported glassware:

‘‘containers of glass used for the

conveyance or packing of goods’’,

‘‘preserving jars of glass’’ and ‘‘glass

storage articles’’. As part of Customs

efforts to clearly and completely inform

importers with regard to classification

issues, it has been determined advisable

to set forth guidelines which Customs

will consider when determining

whether merchandise falls within a

particular class or kind of glassware.

EFFECTIVE DATE: Any changes in tariff

classification resulting from the

implementation of these guidelines and

any revocation of inconsistent rulings

will be effective regarding merchandise

entered for consumption or withdrawn

from a warehouse for consumption on

or after February 2, 1996.

FOR FURTHER INFORMATION CONTACT:

Mary Beth McLoughlin, Metals and
224 Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices

Machinery Classification Branch, Office

of Regulations and Rulings (202) 482–

7030.

SUPPLEMENTARY INFORMATION:

Background

By notice published in the Federal

Register (59 FR 51659) on October 12,

1994, Customs proposed a change of

practice involving the tariff

classification of three classes of

imported glass articles under the

Harmonized Tariff Schedule of the

United States (HTSUS). That notice

examined subheadings 7010.90.50 and

7013.39, HTSUS, which read as follows:

7010.90.50 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: other: other containers (with or

without their closures)

7013.39 glassware of a kind used for table,

kitchen, toilet, office, indoor decoration or

similar purposes (other than that of

heading 7010 or 7018): glassware of a kind

used for table, (other than drinking glasses)

or kitchen purposes other than that of

glass-ceramics: other

There are two types of classification

by use:

(1) according to the use of the class or

kind of goods to which the imported

article belongs; and

(2) according to the actual use of the

imported article.

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 in the absence of special language

or context which otherwise requires, 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.

Tariff classification of goods

controlled by actual use is specifically

provided for in sections 10.131–10.139,

Customs Regulations [19 CFR 10.131–

10.139]. According to these regulations,

an actual use provision is satisfied if: (1)

such use is intended at the time of

importation, (2) the article is so used,

and (3) proof of such use is furnished

within three years after the date the

article has been entered.

Currently, tariff classification under

both subheading 7010.90.50 and

7013.39, HTSUS, is determined by the

use of the class or kind of articles to

which the imported merchandise

belongs. As such, they are considered

provisions controlled by Additional

U.S. Rule of Interpretation 1(a), HTSUS.

Customs proposed that subheadings

7010.90.50 and 7013.39 would remain

principal use provisions. Therefore, for

an imported good to be classifiable in

either of these subheadings, it must be

of a class or kind classifiable in these

subheadings. Whether it is of the class

or kind of articles classifiable in either

subheading will be determined by its

principal use. Principal use will, in

turn, be determined by the specific

criteria formulated to determine to what

class or kind the imported goods belong.

In formulating the criteria, Customs

considered its prior headquarters ruling

letters and court cases, comments from

the public and the Harmonized

Commodity Description and Coding

System Explanatory Notes (ENs). The

ENs, although not dispositive, or legally

binding, provide a commentary on the

scope of each heading of the HTSUS,

and are generally indicative of the

proper interpretation of the HTSUS.

See, T.D. 89–90, 54 FR 35127, 35128

(August 23, 1989). Based on the plain

language of the provision, Customs

proposed that subheading 7010.90.50

includes the classes ‘‘glass containers of

a kind used for the conveyance or

packing of goods’’ and ‘‘preserving jars

of glass’’.

Containers of a Kind Used for the

Conveyance or Packing of Goods

Customs proposed understanding of

the principal use of this class and the

factors which indicate acceptance of a

particular article in the class, was that

together, they provided specific

identifiable characteristics which are

indicative, but not conclusive of

whether a particular glass article

qualifies as part of the class ‘‘containers

of glass of a kind used for the

conveyance or packing of goods’’. These

characteristics would include,

containers, of all shapes and sizes:

1. Generally having a large opening, a

short neck (if any) and as a rule, a lip

or flange to hold the lid or cap, made

of ordinary glass (colorless or colored)

and manufactured by machines which

automatically feed molten glass into

molds where the finished articles are

formed by the action of compressed air;

2. In which the ultimate purchaser’s

primary expectation is to discard the

container after the conveyed or packed

goods are used;

3. Sold from the importer to a

wholesaler/distributor who then packs

them with goods;

4. Sold in an environment of sale that

features the goods packed in the jar and

not the jar itself;

5. Used to commercially convey

foodstuffs, beverages, oils, meat extracts,

etc.;

6. Capable of being used in the hot

packing process; and

7. Recognized in the trade as used

primarily to pack and convey goods to

a consumer who then discards the

container after this initial use.

Customs proposed that the physical

characteristics of a particular glass

article are the primary indicator of

whether it belongs to the class

‘‘containers of a kind used for the

conveyance or packing of goods’’.

Additionally, we noted that whether a

particular container is capable of being

used in the ‘‘hot packing’’ process, is of

limited utility when determining

whether it is classifiable as a container

of a kind used for the conveyance or

packing of goods. Finally, Customs

proposed one additional factor: that

glass containers imported without their

corresponding caps or lids was a

physical characteristic that indicates

that particular containers will be used

for the conveyance or packing of goods.
Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices 225

Preserving Jars of Glass

Customs proposed that the principal

use for the class ‘‘preserving jars of

glass’’ is jars purchased and used for

home canning only. Further, there are

identifiable characteristics that are

indicative, but not conclusive of the

principal use of glass jars classifiable as

‘‘preserving jars of glass’’.

These would include glass articles of

any shape that are between .23 and 2.2

liter sizes, and are the shape and height

of regular and wide-mouth ‘‘Masontype’’, threaded, home-canning jars with

self-sealing lids. Generally, the standard

jar mouth opening is about 23⁄8 inches

with wide mouth jars having 3 inch

openings. ‘‘Mason-type’’ jars have

narrower sealing surfaces and are

tempered less than most commercial

pint and quart-size jars. The common

self-sealing lid consists of a flat metal

lid held in place by a metal screw band

during processing. The flat lid is

crimped around its bottom edge to form

a trough, which is filled with a colored

gasket compound. Glass articles with

wire bails and glass or porcelain caps or

lids were considered not classifiable as

‘‘preserving jars of glass’’ as their

physical characteristics do not allow

them to be recommended for home

canning use.

Glassware of a Kind Used for Table or

Kitchen Purposes: Glass Storage

Articles

Based on the plain language of the

heading, Customs stated that

subheading 7013.39 provides for the

class ‘‘glassware of a kind used for table

or kitchen purposes’’. This class

includes articles principally used to

hold or store other articles in the home.

Furthermore, among these articles,

certain glass storage jars may also be

principally used in this fashion.

Therefore, Customs proposed that glass

articles which are principally used to

store articles in the home are classifiable

under subheading 7013.39 and

identified the following characteristics

which were indicative, but not

conclusive of glassware of a kind used

for table or kitchen purposes; glass

household storage articles. They are

glass articles:

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 colorless, colored 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.

Analysis of Comments

Six comments were received in

response to the notice, four from

importing interests and two from

domestic manufacturers of glassware.

Substantive legal arguments contained

in the comments are discussed below.

Relative Specificity of Headings 7010

and 7013

Regarding the classification of glass

articles capable of both conveyance or

packing of goods and household storage,

a commenter has suggested that the

question of classification is determined

not by a use comparison, but by the

specific statutory exclusion of articles

classifiable in heading 7010 from

classification in heading 7013.

According to the commenter, the

language in heading 7013 excludes all

merchandise described in heading 7010.

Therefore, heading 7013’s relative

specificity is well indicated by the

statutory language itself.

Customs agrees that the language of

heading 7013 excludes from

classification articles classifiable in

heading 7010. However, that language is

qualified by the holding of Group

Italglass U.S.A. v. United States, 17 CIT

226. In that case, the CIT specifically

held that: ‘‘[t]he language in heading

7010, ‘of a kind used for’ explicitly

invokes use as a criterion for

classification and under heading 7010

principal use is controlling.’’ Id at 228.

As both headings contain the language

‘of a kind used for’, Customs position is

that the principal use of a particular

article will determine whether it

belongs to one of the classes or kinds

described by heading 7010, or heading

7013. Principal use of a particular

article will, in turn, be determined by

the specific criteria formulated for the

classes or kinds described in headings

7010 and 7013.

Should it be determined that the

principal use of a particular article

indicates it is classifiable within a class

or kind provided for in heading 7010

the language of heading 7013 precludes

that particular article from classification

in heading 7013. Should it be

determined that the principal use of a

particular article indicates that it does

not belong to a class or kind provided

for in heading 7010, it is not precluded

from classification in heading 7013.

Containers of a Kind Used for the

Conveyance or Packing of Goods

Application of the Proposed Criteria

Several commenters indicated

concern that the various criteria

provided would be applied as ‘‘bright

line’’ rules.

Customs position is that generally, the

principal use criteria provided are

merely characteristics, indicators of, or

tools to indicate, whether a specific

piece of glassware is principally used in

the same manner as the class or kind the

criteria describe. Additionally, the

statement that the principal use criteria

are merely indicative and not

conclusive, clearly demonstrates that

the characteristics are guidelines and

not a ‘‘litmus test’’ or ‘‘bright line’’ rules

for classification purposes.

As a general rule, a glass article’s

physical form will indicate its principal

use and thus to what class or kind it

belongs. Examples of characteristics

indicative, but not conclusive of, the

physical form of articles belonging to

the class or kind ‘‘containers of a kind

used for the conveyance or packing of

goods’’ are enumerated in EN 70.10 and

under the ‘‘physical characteristics’’

criteria. Should, however, an exception

arise and an article’s physical form does

not indicate to what class or kind it

belongs or its physical form indicates it

belongs to more than one class or kind,

Customs considers the other

enumerated principal use criteria.

Physical Description

It has been suggested that the first

criterion, the physical characteristics of

the class ‘‘containers of glass used for

the conveyance or packing of goods’’ is

too narrow for the entire class. Rather,

the entire class includes 4 different

types of containers used for the

commercial conveyance of liquid and

solid products. These types are

described in the ENs to heading 7010,

and include:

(A) Carboys, demijohns, bottles

(including syphon vases), phials, and

similar containers * * * of all shapes

and sizes * * * used as containers for

* * * (see list).

(B) Jars, pots, and similar containers

* * * used for the commercial

conveyance of certain foodstuffs,

cosmetic or toilet preps, pharmaceutical

products, polishes, cleaning preps, etc.
226 Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices

(C) Ampoules usually obtained from

drawn glass and intended to serve after

sealing as containers for serums, etc.

(D) Tubular containers and similar

containers.

Additional descriptions of how each

kind of container or jar is produced, its

typical closure design and decorative

features are included in these breakouts.

Based on these expressed concerns, it

has been suggested that reference to the

ENs with an explanation, should replace

this criterion. Customs agrees with the

commenters’ observations and reiterates

its position that the physical description

provided in the proposed notice,

together with the descriptions found in

EN 70.10, are indicative, but not

conclusive, physical characteristics of

glass articles belonging to the class

‘‘containers of a kind used for the

conveyance or packing of goods’’.

Ultimate Purchaser’s Expectation

A commenter has suggested that this

criterion be eliminated because the

language ‘‘***discard containers after

use’’ prevents recyclable containers

from classification as containers of a

kind used for the conveyance or packing

of goods.

Customs position is that for heading

7010 purposes, the term ‘‘discards’’ in

the phrase ‘‘. . . to convey or pack a

product to a consumer who uses the

product and then discards the

container’’ includes glass articles

otherwise described as ‘‘containers’’

which are ‘‘discarded’’ for recycling.

Importer-Wholesaler/Distributor

A commenter has suggested that this

criterion is a misapplication of

Additional U.S. Rule of Interpretation

1(a) because it refers to the distribution

by ‘‘importers’’. The commenter

indicates that Additional U.S. Rule 1(a)

states that review applies to all goods of

the class or kind, whether imported or

not. Additionally, the commenter

contends that this criterion suggests the

application of actual use to the

classification of glassware. Finally, the

commenter requests guidance on what

evidence Customs would expect

importers to provide regarding channels

of trade.

Customs agrees with the comments

regarding Additional U.S. Rule of

Interpretation 1(a). Additionally,

Customs position is that this criterion is

an explanation of the pattern or channel

of trade that goods of this class generally

follow. While not all goods of this class

follow this channel of trade, Customs

believes that enough do for this pattern

to be considered indicative but not

conclusive of articles belonging to the

class. Finally, Customs believes

evidence will be solicited on a case-bycase basis.

Environment of Sale/Channel of Trade

According to one commenter, this

criterion ignores the commercial

realities of the food and beverage market

in that containers are often a vehicle

used by the packager to differentiate its

product from others.

The classification of merchandise

under the HTSUS is governed by the

General Rules of Interpretation (GRIs).

GRI 1, states, in pertinent part, that for

legal purposes, classification shall be

determined according to the terms of the

headings and any heading or chapter

notes. While the ‘‘commercial realities’’

of the glass container market may

require redesign of glass articles, for

tariff classification purposes, the

application of the GRIs together with

Additional U.S. Note 1(a), requires that

if the article’s form is altered in a way

that no longer indicates it is principally

used as a container, it must be

reclassified. While, as one of its uses, a

glass article may be used to pack and

convey a good to a consumer, that use

must be its principal one for it to belong

to the class ‘‘glass articles of a kind used

for the conveyance or packing goods’’.

Lids

Commenters claim that Customs

addition of a factor relating to the

importation of lids with containers is in

direct conflict with the statutory

language of heading 7010, which states,

in pertinent part, *** ’’with or without

their lids’’. They believe that the

heading language makes it clear that

Congress intended that closures be

disregarded when determining the class

of a given container. Additionally, use

of this criterion could lead to a

container being classified differently

depending upon whether it was

imported with or without a lid. Finally,

they assert that this is, in effect, an

actual use test.

Instead of reviewing lids, the

commenters suggest considering a

container’s finish, the portion of the

container where the cap or lid will be

attached. Designs include threaded,

beaded and a variety of other finishes.

Because closures are created to match

standard finishes, the commenters

suggest that the proposed criterion

should state that all containers with a

‘‘standard finish’’ are classifiable as

containers used for the conveyance or

packing of goods. The commenters agree

that it is generally true that containers

for the conveyance or packing of goods

are imported without their lids. They

believe, however, that there is a danger

of undue focus on the presence or

absence of a lid, as a lid’s presence or

absence is one of the easily identifiable

criteria. Finally, this criterion would

increase the possibility that drinking

glasses which are always imported

without lids, would be classified

incorrectly.

Finally, one commenter has requested

that Customs clarify its distinction by

stating that the absence of lids or caps

is only a ‘‘plus’’ factor pointing toward

classification in heading 7010, but that

the presence of a lid or cap in no way

points against heading 7010

classification. The commenter then

suggests that ultimately, the absence or

presence of a lid does not affect the

‘‘reusablitity’’ or ‘‘function’’ of a

container and therefore should not carry

much weight in determining a

container’s classification.

After careful consideration of the

comments, Customs withdraws this

criterion.

Preserving Jars of Glass

Class or Kind vs. eo nomine

One commenter disagrees with

Customs characterization of preserving

jars of glass as a use provision and

instead claims that the provision is eo

nomine. According to the commenter,

the general rule for classification under

an eo nomine provision is that the

provision includes all forms of the

named article. The commenter further

states that bail and trigger jars are well

known in commerce as having been

designed for use in the preserving of

foodstuffs. Therefore, it is irrelevant

whether the jars are principally used as

such.

As previously discussed in the

relative specificity section, Customs

position is that Italglass requires the

application of principal use to all

classes in heading 7010.

Scope of the Class ‘‘Preserving Jars of

Glass’’

Another commenter argues that

Customs definition of preserving jars of

glass as home canning jars is too

restrictive. Customs definition was: to

prepare food for future use, as by

canning or salting to treat fruit or other

foods so as to prevent decay. The

commenter suggests a broader

definition: preserving means ‘‘food

preservation’’. Food preservation should

be defined as the protection of food

from spoilage. Therefore, any glass

container used to protect food from

spoilage is a preserving jar.

Customs is of the opinion that its

proposed definition is the common

dictionary and trade definition of

preserving. Customs does not agree with
Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices 227

the commenter’s definition of

preserving as it is entirely too broad. EN

70.10’s inclusion of the phrase ‘‘* * *

Jars, pots, and similar containers * * *

used for the commercial conveyance of

certain foodstuffs’’ clearly indicates that

not all glass articles capable of

protecting food from spoilage belong to

the class ‘‘preserving jars of glass’’. This

language and application of the ENs

clearly indicate that the commenter’s

broad definition was not the intent of

the EN drafters. Furthermore, Congress’

adoption of a separate class for

preserving jars, clearly demonstrates

their intent to narrow the scope of both

the conveyance and packing provision

and the preserving jar provision.

USDA Bulletin

Several commenters state that

Customs should not rely on the U.S.

Department of Agriculture, Extension

Service, Complete Guide to Home

Canning: Guide 1 Principals of Home

Canning (Agricultural Information

Bulletin No. 539–1, May 1989), [USDA

bulletin] because it does not explain

why bail and trigger jars are not

recommended for home canning. They

suggest that replacement gaskets may no

longer be manufactured for use with the

jars and that a higher risk of

contamination exists with these jars

because they have to be sealed by

pushing down the clamp after being

removed from the canner. Also, reliance

on the USDA pamphlet is severely

limited by the findings of Nestle

Refrigerated Food Co. v. United States,

U.S. CIT, Slip Op. 94–118 (July 20,

1994). The court stated that

administrative interpretations not

related to tariff purposes are not

determinative of Customs classification

disputes. Reference is also made to

different sources on preserving which

indicate bail and trigger jars are usable

for home canning purposes. One

commenter suggests that the following

should be the standards for preserving

jars:

1. The jars are specifically designed,

as evidenced by patents or other reliable

documents, for use as home canning or

preserving jars;

2. Instructions for using the jars in the

home preserving process are provided;

and

3. Rubber seals or lids are readily

available at the start of each home

canning season from the sources where

the consumer purchased the jars.

Customs position is that reliance on

the USDA bulletin does not conflict

with the holding of Nestle Refrigerated

Food Co. v. United States. The

definition of preserving, was not

provided by the USDA bulletin, but

rather by consulting the dictionary and

the common and commercial meaning.

A tariff term that is not defined in the

HTSUS or in the ENs is construed in

accordance with its common and

commercial meaning. Nippon Kogasku

(USA) Inc. v. United States, 69 CCPA

89, 673 F.2d 380 (1982). Common and

commercial meaning may be

determined by consulting dictionaries,

lexicons, scientific authorities and other

reliable sources. C.J. Tower & Sons v.

United States, 69 CCPA 128, 673 F.2d

1268 (1982). Customs has cited the

USDA bulletin because various home

canning nutritionists and food scientists

consulted stated that the USDA bulletin

provided the guidelines that home

canners, and those who create the

necessary jars, rely on to create the

preserves as well as the jars themselves.

Moreover, Customs has

independently reviewed the scientific

studies relied upon for the conclusion

drawn regarding wire and bail trigger

glass jars in the USDA bulletin. Customs

position is that the scientific evidence

supports the conclusion that wire bail

and trigger jars should not be

principally used as home canning jars.

Therefore, the jars cannot be classified

as such.

Glassware of a Kind Used for Table or

Kitchen Purposes: Glass Storage

Articles

Scope of Heading 7013

One commenter states that Customs

misunderstands the scope of heading

7013. That commenter believes that

none of the exemplars in EN 70.13 relate

to the holding or storage of any article

in the home. Rather, the commenter

contends that all but one of the articles

listed in EN 70.13(1) are articles which

are used to prepare and serve food.

Therefore, glass household storage

articles are not classifiable in heading

7013.

As further evidence that glass

household articles are not classifiable in

heading 7013, the commenter cites to

heading 6911 and claims that headings

7013 and 6911 are ejusdem generis and

therefore their ENs should ‘‘mirror’’

each other. However, the commenter

notes, EN 69.11, specifically provides

for storage jars. Because EN 70.13 does

not, the commenter believes it was the

drafters intent to omit glass household

storage articles from heading 7013. The

commenter suggests that the drafters

clearly included ceramic preserving jars

and storage jars within the scope of

headings 6911 and 6912, and excluded

them from heading 6909. According to

the commenter, the similarity to the

exemplars in ENs 69.11, 69.12 and 70.13

is striking. Therefore, the omission of

preserving and storage jars from EN

70.13 is significant. The commenter

believes that glass storage jars are

included in the scope of glass

preserving jars and states that this

follows from the fact that the storage of

food products prevents spoilage

(drawing moisture, infestation with

vermin, etc.).

Customs position is that the

exemplars from EN 70.13 are merely

that, examples. They are not all

inclusive. Additionally, Customs

believes that the following EN 70.13

exemplars all are used to store various

food stuffs or articles in the home:

(1) Table or kitchen glassware, e.g.

* * * decanters, infants’ feeding

bottles, pitchers, jugs, * * * cakestands, * * * butter dishes, oil or

vinegar cruets, * * * salt cellars, * * *

sweetmeat boxes, graduated

kitchenware, * * * ice-buckets.

Furthermore, Customs believes that the

commenter’s direct comparison of the

ENs 69.09, 69.11 and 69.12 to 70.10 and

70.13 was clearly not the intent of the

EN authors. Were that the authors’

intent, they would have applied the ENs

for headings 69.09 and 69.13 mutatis

mutandis to those of headings 70.10 and

heading 70.13.

Customs position is that heading 7013

provides for glass storage articles within

the class glassware of a kind used for

table, kitchen, toilet, office, indoor

decoration or similar purposes.

Decorative Motif

One commenter was concerned

because many household storage articles

are very simple, strictly utilitarian and

have no decorative motif. Because the

criterion of a decorative motif is

objective and easily determined, the

commenter contends that there is a risk

of it being given undue importance or

becoming the sole criterion.

Additionally, examples of specific

decorative motifs are unacceptable

because of a danger that household

storage jars having unlisted motifs will

be misclassified. Therefore, criterion 2

should be eliminated and the following

be added to criterion 1: ‘‘painted or

otherwise having a decorative motif’’.

Customs agrees with the comment and

has made the change.

Distribution Channels

One commenter was concerned about

this criterion because while it may

identify the most common distribution

channels for articles imported for

ultimate sale in the retail market, it

excludes articles imported directly by

large retail chains.
228 Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices

Customs recognizes that the

distribution channel described is a

general rule and does not preclude from

consideration for this class glassware

distributed through other channels.

Lids

One commenter states that Customs

lid criterion creates the expectation that

heading 7013 articles are always

imported with their lids. Although it is

true that glass containers imported for

use in conveying or packing goods are

generally imported without their lids, it

does not follow that table or kitchen

storage containers are necessarily

imported with their lids. The

commenter believes the only clear

statement that can be made about lids is

that glass household storage articles are

imported without their lids less

frequently than are containers for the

conveyance or packing of goods. As

previously noted, this criterion has been

withdrawn.

Conclusion

After careful review and

consideration of all the comments

received in response to the notice of

proposed position, a review of Customs

implementation of its prior

understanding of the 3 classes and a

review of Customs rulings, Customs

adopts, with some modification, its

proposed position.

Subheadings 7010.90.50 and 7013.39;

Relative Specificity

Based on the Italglass holding,

Customs concludes that the language

‘‘of a kind used for’’ explicitly indicates

that the principal use of a particular

article will determine whether it

belongs to one of the classes or kinds

described by heading 7010 or heading

7013. Principal use of a particular

article will, in turn, be determined by

the specific criteria formulated for the

classes or kinds described in headings

7010 and 7013.

Should it be determined that the

principal use of a particular article

indicates it is classifiable within a class

or kind provided for in heading 7010,

the language of heading 7013 precludes

that particular article from classification

in heading 7013. Should it be

determined that the principal use of a

particular article indicates that it does

not belong to a class or kind provided

for in heading 7010, it is not precluded

from classification in heading 7013.

Containers of a Kind Used for the

Conveyance or Packing of Goods

Customs concludes that as a general

rule, a glass article’s physical form will

indicate its principal use and thus to

what class or kind it belongs. Examples

of physical forms indicative, but not

conclusive of, articles belonging to the

class or kind ‘‘containers of a kind used

for the conveyance or packing of goods’’

are enumerated in EN 70.10 and under

the ‘‘physical characteristics’’ criterion.

When an exception arises and an

article’s physical form does not indicate

to what class or kind it belongs or its

physical form indicates it belongs to

more than one class or kind, Customs

considers the other enumerated

principal use criteria.

Customs concludes that generally, the

principal use criteria provided are

merely characteristics, indicators of, or

tools to indicate, whether a specific

piece of glassware is principally used in

the same manner as the class or kind the

criterion describe. Further, Customs

adopts the following criteria as

indicative, but not conclusive of

whether a particular glass article

qualifies as part of the class ‘‘containers

of glass of a kind used for the

conveyance or packing of goods’’:

1. Generally having a large opening, a

short neck (if any) and as a rule, a lip

or flange to hold the lid or cap, made

of ordinary glass (colourless or

coloured) and manufactured by

machines which automatically feed

molten glass into moulds where the

finished articles are formed by the

action of compressed air;

2. The ultimate purchaser’s primary

expectation is to discard/recycle the

container after the conveyed or packed

goods are used;

3. Sold from the importer to a

wholesaler/distributor who then packs

the container with goods;

4. Sold in an environment of sale that

features the goods packed in the

container and not the jar itself;

5. Used to commercially convey

foodstuffs, beverages, oils, meat extracts,

etc.;

6. Capable of being used in the hot

packing process; and

7. Recognized in the trade as used

primarily to pack and convey goods to

a consumer who then discards the

container after this initial use.

Preserving Jars of Glass

Customs concludes that the term

‘‘preserving’’ is described, in pertinent

part, as ‘‘to prepare food for future use,

as by canning or salting; to treat fruit or

other foods so as to prevent decay’’.

Based upon the above definition, the

reliance on the guidelines espoused in

the U.S. Department of Agriculture,

Extension Service, Complete Guide to

Home Canning: Guide 1 Principals of

Home Canning (Agricultural

Information Bulletin No. 539–1, May

1989), by various home canning

nutritionists and food scientists

consulted, and an independent review

of the scientific evidence the USDA

guidelines are based upon, Customs

concludes that there are identifiable

characteristics that are indicative, but

not conclusive of the principal use of

glass jars classifiable as ‘‘preserving jars

of glass’’. They include glass articles

that are between .23 and 2.2 liter sizes

and are the shape, round or square, (eg:

not multi-sided, faceted or decorated)

and height of regular and wide-mouth

‘‘Mason-type’’ jars.

Generally, the standard jar mouth

opening is about 23⁄8 inches with wide

mouth jars having 3 inch openings.

‘‘Mason-type’’ jars have narrower

sealing surfaces and are tempered less

than containers belonging to the class

‘‘containers of a kind used for the

conveyance or packing of goods’’. The

common self-sealing lid consists of a flat

metal lid held in place by a metal screw

band during processing. The flat lid is

crimped around its bottom edge to form

a trough, which is filled with a colored

gasket compound.

Customs concludes, therefore, that

jars with wire bail and trigger closures

are not included within the scope of the

class ‘‘preserving jars of glass’’ but

rather within the scope of the class

‘‘glassware of a kind used for table or

kitchen purposes’’ classifiable under

heading 7013. The physical form of the

wire bail and trigger jar indicates its

principal use as a storage article.

Glassware of a Kind Used for Table or

Kitchen Purposes: Glass Storage

Articles

Customs concludes that as a general

rule, a glass article’s physical form will

indicate its principal use and thus to

what class or kind it belongs. Examples

of physical forms indicative, but not

conclusive of, articles belonging to the

class or kind ‘‘containers of a kind used

for the conveyance or packing of goods’’

are enumerated in EN 70.13 and under

the ‘‘physical characteristics’’ criterion.

When an exception arises and an

article’s physical form does not indicate

to what class or kind it belongs or its

physical form indicates it belongs to

more than one class or kind, Customs

considers the other enumerated

principal use criteria.

Customs concludes that heading 7013

includes the class ‘‘glass storage

articles’’. Additionally, Customs adopts

the following principal use criteria:

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
Federal Register / Vol. 61, No. 2 / Wednesday, January 3, 1996 / Notices 229

may also be colorless, colored or of

flashed glass, and may be cut, frosted,

etched, engraved, painted or otherwise

have a decorative motif.

2. The consumer purchases primarily

to use for storage;

3. Sold from the importer to a

wholesaler/distributor who then sells

them to a retailer;

4. Sold in an environment of sale that

emphasizes the article’s use or reuse as

a storage article;

5. Sold to the ultimate purchaser

empty; and

6. Recognized in the trade as

primarily having a storage use.

Effect on Rulings: This document

revokes Headquarters Ruling Letters,

951721 dated January 12, 1993; 952675

dated January 15, 1993; 953280 dated

February 5, 1993; 951991 dated March

2, 1993; 954293 dated June 30, 1993;

954792 dated November 24, 1993;

953952 dated September 21, 1994, and

any other rulings which are not

consistent with these guidelines.

EFFECTIVE DATE: Any changes in tariff

classification resulting from the

implementation of these guidelines and

any revocation of inconsistent rulings

will be effective regarding merchandise

entered for consumption or withdrawn

from a warehouse for consumption on

or after February 2, 1996.

George J. Weiss,

Commissioner of Customs.

Approved: November 29, 1995.

John P. Simpson,

Deputy Assistant Secretary of the Treasury.

[FR Doc. 95–31593 Filed 12–29–95; 1:41 pm]

BILLING CODE 4820–02–P