CLA-2 RR:TC:MM 960513 PH
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).
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
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
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
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
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.
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.
John Durant, Director, Tariff
Classification Appeals Division