CLA-2 CO:R:C:M 953280 KCC

District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island
Room 2017
San Pedro, California 90731

RE: Internal Advice #84/92; glass jars for conveyance or packing of liquids or of solid products; glass preserve jars; household glass storage articles; use provisions; principal use; Additional U.S. Rule of Interpretation 1(a); EN 70.10; EN 70.13; HRL 088020; HRL 087779; HRL 951721; HRL 087727

Dear Sir:

This is in response to your memorandum of December 11, 1992, requesting internal advice regarding the tariff classification of glass jars imported by Global Guzzini, under the Harmonized Tariff Schedule of the United States (HTSUS). A sample from each category of product and product brochures were submitted for our review.

FACTS:

The products at issue consist of glass jars, bottles and flasks, which are described as follows: 1. Faceted Jars with bail and trigger assemblies and rubber gaskets. Global Guzzini states that the complicated closure mechanism of these jars provides a hermetic seal which allows the jars to function as preserve jars. The jars are imported in the following sizes:

13" height and 3 1/2" diameter with a 70 oz. capacity; 11" height and 3 1/2" diameter with a 53 oz. capacity; 8" height and 3 1/2" diameter with a 38 oz. capacity; 5 1/2" height and 3 1/2" diameter with a 20 oz. capacity; and 6" height and 2" diameter with a 11 oz. capacity.

2. Orcio Jars with bail and trigger assemblies and rubber gaskets. Global Guzzini states that the complicated closure mechanism of these jars provides a hermetic seal which allows the jars to function as preserve jars. The jars are imported in the following sizes:

6 1/2" height and 3 1/2" diameter with a 30 oz. capacity; 5 1/2" height and 3 1/2" diameter with a 21 oz. capacity; 5 1/2" height and 2" diameter with a 15 oz. capacity; and 4" height and 2" diameter with a 12 oz. capacity.

3. Milly Faceted Bottles with bail and trigger assemblies, rubber gaskets, and ceramic stoppers. The bottles are imported in various sizes. The sample submitted is a 34 oz. bottle, 12" tall and 3 1/2" in diameter with a 1" mouth.

4. Caravella Bottle with cork stopper is a 27 oz. ship-shaped bottle with a 1" diameter mouth, 3 1/2" overall diameter and 7 3/4" height.

5. Fiaschetti Flask with bail and trigger assemblies, rubber gaskets and rubber stoppers. Global Guzzini states that the complicated closure mechanism of these flasks provides a seal which allows the flasks to preserve the bottled liquids. The flasks are imported in the following sizes:

9" height and 4 1/2" width with 2" diameter and 17 oz. capacity; and 7 1/2" height and 3 1/2" width with a 1 1/2" diameter and 9 oz. capacity.

6. Quattro Stagioni Canning Jars are sold without their metal lids. Global Guzzini states that the canning process dictates that once the jar is opened, the tension in the seal is broken and a new lid must be used in order to create the necessary vacuum seal. These jars are imported in the following sizes:

6 3/4" height and 4" diameter with 3 1/2" mouth and 37 oz. capacity; 8 1/4" height and 4 1/2" diameter with a 3 1/2" mouth and 56 oz. capacity; 9" height and 3 3/4" diameter with 2" mouth and 35 oz. capacity; 3 3/4" height and 3 1/2" diameter with a 2 1/2" mouth and 11.5 oz. capacity; and 5 1/2" height and 3 1/2" diameter with 2 1/2" mouth and 20 oz. capacity.

Global Guzzini contends that its products are properly classified under heading 7010, HTSUS, as preserving jars of glass. The hermetic seal which is maintained by the screw-on lid or wire closing mechanism ensures protection from the outside elements thus preserving the contents in the glass jars and bottles. Global Guzzini states that it sells its products to specialty stores, food packaging companies, canneries, hotels and restaurants. The Faceted jars, Orcio jars, and Quattro Stagioni canning jars are filled with fruits mixed with liquor, fruits with liqueur, and sauces. Global Guzzini's opinion is that jars are incidental to the food contained therein, but are sufficiently attractive to make the consumer select the product in their jars. The Fiaschetti flasks and Milly bottles are filled with wine, vinegars, oils, salad dressings, sauces, garlic, and other condiments. The Caravella bottles are usually filled with wines and sealed with a cork. However, they note that these bottles may be sold with the more elaborate wire closing mechanism at a substantially greater expense.

ISSUE:

Are the glass jars, flasks and bottles classified under subheading 7010.90.50, HTSUS, as containers or preserving jars, or under subheading 7013.39, HTSUS, as table/kitchen glassware?

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 the terms of the headings and any relative section or chapter notes...." In this case, the competing headings are headings 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. Additional U.S. Rule of Interpretation 1(a), HTSUS.

Heading 7010, HTSUS, provides for "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." Explanatory Note (EN) 70.10 of the Harmonized Commodity Description and Coding System (HCDCS) (pgs. 933-34), states that "[t]his 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 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." HCDCS, Vol. 3, p. 934. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Numerous glass articles used to hold food products within the home 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, HTSUS. Heading 7013, HTSUS, provides for "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, glassware of a kind used for table (other than that of heading 7010 or 7018). EN 70.13 states:

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.

HCDCS, Vol. 3, p. 936.

In Headquarters Ruling Letter (HRL) 088020 dated January 14, 1991, we 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" to 14 ". They had a metal loop fastener closure and a rubber ring seal. HRL 088020 stated that heading 7010, HTSUS, "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, HTSUS, they were classified under 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" tall and a round glass storage jar with a cork stopper style cover that was 12" tall, under subheading 7013.39.20, HTSUS, and HRL 951721 dated January 13, 1992, which classified glass jars with bail and trigger assemblies and gaskets from 1/2 liter to 3 liters and jars with plastic pressure fit tops under subheading 7013.39, HTSUS.

The Faceted and Orcio jars, Milly and Caravella bottles, and Fiaschetti flasks are not principally used as the class or kind of merchandise contemplated by heading 7010, HTSUS. The types of containers found in heading 7010, HTSUS, are principally used to convey a product to the consumer who uses the product in the container and then discards the container. The glass jars at issue are similar to the jars in HRL 088020, HRL 087779 and HRL 951721. The glass jars at issue are shaped and sized differently than commercial jars used to convey and preserve food. They are not merely used as containers to convey the food product to the consumer and then be discarded but, additionally, they serve as decorative household jars that are used as canisters to hold a variety of foods. It is our position that the Faceted and Orcio jars, Milly and Caravella bottles, and Fiaschetti flasks are household jars that are used to hold food. They are similar to many of the articles listed in EN 70.13 as they are functional for the storing of articles of food. Furthermore, the Faceted and Orcio jars, Milly and Caravella bottles and Fiaschetti flasks 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 7013.39.20, 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. Therefore, the Faceted and Orcio jars, Milly and Caravella bottles and Fiaschetti flasks are classified in heading 7013, HTSUS. Specifically, they are classified in subheading 7013.39, HTSUS. The eight digit subheading will vary depending on the value of the jars, bottles, and flasks.

The Quattro Stagioni canning jars are in the form and hold the typical volume that is normally associated with preserve jars. Global Guzzini states that the canning process for the Quattro Stagioni jars dictates that once the jar is opened, the tension in the seal is broken and a new lid must be used in order to create the necessary vacuum seal. This type of seal is typical for the class or kind of preserving jar classified under heading 7010, HTSUS. Therefore, the Quattro Stagioni canning jars are properly classified under subheading 7010.90.50, HTSUS.

Finally, we note that it has come to our attention from the Assistant Chief Counsel's office that products similar to the Faceted and Orcio jars, Milly and Caravella bottles and Fiaschetti flasks are the subject of pending litigation before the Court of International trade in Italglass v. United States. Consequently, until this litigation is resolved, similar merchandise should be classified according to the above analysis.

HOLDING:

The Faceted and Orcio jars, Milly and Caravella bottles, and Fiaschetti flasks are properly classified under subheading 7013.39, HTSUS, which provides for "Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, glassware of a kind used for table (other than that of heading 7010 or 7018)...Glassware of a kind used for the table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics...Other...Other...." Classification to the eight digit level is dependent on the value of the glass products.

The Quattro Stagioni canning jars are properly classified under subheading 7010.90.50, HTSUS, which provides for "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)."

You should advise the internal advice applicant of this decision.

Sincerely,

John Durant, Director