CLA-2 CO:R:C:M 953282 KCC
District Director
U.S. Customs Service
300 South Ferry Street
Terminal Island
Room 2017
San Pedro, California 90731
RE: IA #83/92; glass preserve jars; glass jars for conveyance or
packing of liquids or of solid products; household glass storage
articles; use provisions; principal use; Additional U.S. Rule of
Interpretation 1(a); EN 70.10; EN 70.13; Kraft, Inc. v. U.S.;
HRL's 081805, 087727, 088020, 087779, 951721
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 Farmers Investment Co., under the
Harmonized Tariff Schedule of the United States (HTSUS). Samples
were submitted for our review.
FACTS:
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 1/2 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 jared pecans are sold to wholesale clubs. The cost breakdown
of the jared pecans, as calculated by Farmers Investment Co., is:
2
1 liter 1.5 liter
Jar $ 1.11 $ 1.26
Pecans $10.00 $10.00
Total Wholesale Price $11.11 $11.26
Counsel for Farmers contends that the glass jars are properly
classified under heading 7010, HTSUS, as preserve jars or,
alternatively, as glass containers for the conveyance or packing of
goods.
ISSUE:
Are the glass jars classified under subheading 7010.90.50, HTSUS,
preserving jars or containers for the conveyance or packing of goods,
or under subheading 7013.39.20, 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 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 maybe 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
"[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." HCDCS, 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 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. Heading
7013.30.20, HTSUS, provides for "Glassware of a kind used for table,
kitchen, toilet, office, indoor-decoration or similar
purposes,glassware(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...Valued not
over $3 each." 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, sauceboats, 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, kniferests, 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,
icebuckets. HCDCS, p. 936.
Counsel 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 preserve jars or 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 then a straight-sided jelly 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 decorative
appearance of its glass jars is merely a marketing strategy designed to
establish an image of the product in the consumer's mind. Counsel
states that there is no evidence to suggest that the consumer is
enticed into purchasing the pecans in order to acquire the glass jar
for use as a general household article, inasmuch as the value of the
pecans far exceeds the value of the jar.
We disagree with counsel's contentions. The bear jars in
Kraft are distinguishable from the glass jars at issue. The bear
jars were imported without lids and the court specifically found
that they were not decorative or ornamental in appearance. The
jars at issue are imported with glass lids, rubber gaskets and
wire bale which form the closure mechanism/lid and as counsel
states, the glass jars are decorative. The decorative feature of
the glass jars is the country motif band painted around the jar's
middle and the blue ribbon attached to the wire bale at the jar's
top. While the glass jars may be designed to attract the
attention of the consumer, we do not believe that.this is the
sole function for using this type of jar. Because of the glass
lids, rubber gaskets, and wire bale, the glass jars are designed
for extended use as storage jars; they are of the kind that the
consumer can reuse in the home for the storage of food. Therefore, we
do not find the rational and holding of Kraft to be persuasive.
We are of the opinion that the glass 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 7013.39.20, HTSUS.
Headquarters Ruling Letter (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, in 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
51/2" 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
handles 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 glass jars 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's 088020, 087779, and 951721. 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 glass jars 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. Therefore, the
glass jars are classified under subheading 7013.30.20, HTSUS.
Finally, we note that it has come to our attention from the
Custom's 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 Italqlass v. United States.
Consequently, until this litigation is resolved, similar merchandise
should be classified according to the above analysis.
6
HOLDING:
The glass jars are properly classified under subheading
7013.39.20, 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...Valued not over $3 each."
You should advise the internal advise applicant of this
decision.
Sincerely,
John Durant, Director
Commercial Rulings Division