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

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