CLA-2 OT:RR:CTF:TCM H251041 CkG
TARIFF NO: 7013.49.20
Port Director
U.S. Customs and Border Protection
Port of New York/Newark
1100 Raymond Blvd., Ste 402
Newark, NJ 07102
ATTN: Asude Deniz, Import Specialist
Jennifer Tagliaferro, Supervisory Liquidation Specialist
RE: Internal Advice Request; classification of glass spice jars
Dear Port Director:
This is in response to the request for Internal Advice, dated September 09, 2013, on behalf of Dundas Enterprises, Inc. (“Dundas”), regarding the classification of glass spice jars.
The subject merchandise was entered on November 12, 2012, in subheading 7010.90.50, HTSUS, as glass containers of a kind used for the conveyance or packing of goods. On July 05, 2013, the Port of New York/Newark liquidated the entry in subheading 7013.49.20, HTSUS, as glassware of a kind used for table, kitchen, or similar purposes. Dundas contests CBP’s classification of the subject merchandise and requests that the goods be classified as entered, in heading 7010, HTSUS.
FACTS:
The instant merchandise consists of glass jars with a 4 oz capacity, measuring roughly 4.25” x 1.75” x 1.75”, and featuring a decorative fringe at the top of the body of the jar. They are constructed of thick and durable glass. They are imported empty, then sold to wholesalers and distributers who pack them with spices and other dry seasonings and sell them to food retailers such as supermarkets.
ISSUE:
Whether the instant glass spice jars are containers "of a kind used for the conveyance or packing of goods", classified in heading 7010, HTSUS, or whether they are glassware "of a kind used for table or kitchen purposes", classified under heading 7013, HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS provisions under consideration are as follows:
7010 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 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:
Other:
Valued not over $3 each. . . .
* * * *
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 or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 70.10 provides, in pertinent part, as follows:
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.), cosmetic or toilet preparations (face creams, hair lotions, etc.), pharmaceutical products (ointments, etc.), polishes, cleaning preparations, 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, a lip or flange to hold the lid or cap. Some of these containers, however, may be closed by corks or screw stoppers.
Like bottles, these articles may be sand-blasted, cut, etched or engraved, decorated, banded, etc.
…
The heading also includes preserving jars of glass.
Closures of any material, presented with the containers for which are intended, remain classified in this heading.
…
The heading does not include:
…
(c) 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.
EN 70.13 provides, in pertinent part, as follows:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
…
Table 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.
These articles may be e.g., of ordinary glass, lead crystal, 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 colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles)….
…
The heading [EN 70.13] also excludes:
…
(b) Bottles, flasks, jars, and pots of a kind commonly used for the commercial conveyance or packing of goods, and preserving jars (heading 70.10).
* * * *
Headings 7010 and 7013, HTSUS, are “principal use” provisions (Group Italglass, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993)), which are governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which 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.
The Court in Group Italglass stressed “that it is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.” Group Italglass, 839 F. Supp. at 867.
The Courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. These 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 United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976). See also Lennox Collections v. United States, 20 CIT 194, 196 (1996).
Because the text of heading 7013, HTSUS, excludes goods of heading 7010, HTSUS, the first consideration is whether the merchandise at issue is classifiable in heading 7010, HTSUS. The Court of International Trade provided more specific guidance with regard to heading 7010, HTSUS, in Latitudes Int'l Fragrance, Inc. v. United States, 931 F. Supp. 2d 1247 (Ct. Int'l Trade 2013), in which the CIT reviewed CBP’s classification of empty glass “diffuser bottles” that, once imported, were filled with fragranced oil, fitted with stoppers and diffuser reeds, and packaged for sale as “diffuser kits” used for the dispersion of fragrances in enclosed spaces. Id. at 1250. The court determined that the principal use of the diffuser bottles was as vessels for the conveyance of fragranced oils of heading 7010, HTSUS, rather than as glassware for indoor decoration of subheading 7013.99.50. The court noted in particular that the diffuser bottles were specially designed to contain the fragranced oil, were sent to market only when filled with the oil, that the price of the bottles with their contents at retail was much higher than the cost of the bottles alone, and that while refill kits for the fragranced oil were available from third party vendors, the plaintiff did not sell any refills itself, and there was no evidence that diffuser bottles were sold empty at retail. Based on this determination, the court concluded that the bottles were properly classified in heading 7010. Id. at 1257.
The U.S. Customs Service (now CBP) has also relied on Treasury Decision
(T.D.) 96-7, issued January 3, 1996, which, among other things, adopted certain
criteria as indicative, but not conclusive, of whether a particular glass article falls within the class of "containers of glass of a kind used for the conveyance or packing of goods" (heading 7010), or the class "glassware of a kind used for table, kitchen or similar purposes" (heading 7013). The criteria in T.D. 96-7 for containers of glass of a kind used for the conveyance or packing of goods in heading 7010 are as follows:
1. [The container generally has] a large opening, a short neck (if any) and as a rule, a lip or flange to hold the lid or cap, [is] made of ordinary glass (colourless or coloured) and is 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. [The container is sold] from the importer to a wholesaler/distributor who then packs the container with goods;
4. [The container is sold] in an environment of sale that features the goods packed in the container and not the jar itself;
5. [The container is used] to commercially convey foodstuffs, beverages, oils, meat extracts, etc.;
6. [The container is capable] of being used in the hot packing process; and
7. [The container is recognized] in the trade as used primarily to pack and convey goods to a consumer who then discards the container after this initial use.
The CBP Informed Compliance Publication (ICP) on “Table and Kitchen Glassware” offers further guidance on distinguishing between containers of heading 7010, HTSUS, and kitchen and tableware of heading 7013, HTSUS:
While Mason type jars and storage articles with bail and trigger closures will be regarded as preserving jars classifiable in heading 7010, other glass storage articles are regarded as table and kitchen glassware classifiable in subheading 7013.49, HTSUS. Thus, subheading 7013.49 (not heading 7010) will be applied to glass articles that are principally used as storage articles and have cork closures, metal closures (other than the bail and trigger type), glass closures, or other closures (which are different than the Mason type seal or bail and trigger closure).
Containers are usually disposable. Genuine containers are principally sold by importers to wholesalers and distributors who will pack them with goods to be marketed to consumers. In many instances, the importer of a container will be the one to pack the container with goods to be marketed to the consumers. Containers are principally sold to consumers filled with goods. A product will be regarded as a container only if its form indicates that it will be principally marketed to consumers filled with goods. If the form of the item does not indicate that it belongs to a class or kind of merchandise that will be principally used in this manner, the product cannot be classified as a container in heading 7010 even if the specific imported article will actually be used this way.
In addition, the distinction between products principally used as containers and products principally used as storage articles has also been discussed in numerous Headquarters rulings. In general, CBP has classified glass containers and jars in heading 7010, HTSUS, where such jars met the requirements for preserving jars or were not sold commercially and were not decorative or ornamental. See e.g., HQ 951991, dated March 2, 1993, HQ 958477, dated February 14, 1996; HQ 953952, dated September 21, 1994; and HQ 956470, dated September 28, 1994. In contrast, CBP has consistently held that a glass item with a form that indicates principal use as a storage article is classifiable as table/kitchen glassware in heading 7013, HTSUS, not as a conveyance or packing container in heading 7010, HTSUS. See e.g., HQ H127116, dated January 25, 2012; HQ H032715, dated March 08, 2010; HQ 967204, dated September 8, 2004; HQ 963665, dated April 24, 2000; HQ 087779, dated December 27, 1990.
Pursuant to the above guidance, glass containers provided for in heading 7010, HTSUS, are limited to items with forms which indicate that they will be principally used simply to convey and pack goods that will be sold commercially. They are generally disposable, are packed with goods by wholesalers or distributors after importation, and are featured in an environment of sale that focuses on the goods contained within rather than the container itself.
The physical features of the instant spice jars are not indicative of disposable packaging or conveyance containers of heading 7010, HTSUS. An article will not generally be regarded as a conveyance container if it will be retained in the home and continually used to store and dispense food material. See e.g., NY N255683 August 27, 2014; NY N065020, dated July 10, 2009. The instant jars are attractive in appearance, they are sturdily constructed from thick and durable glass, and they are suitable for repeated handling and use. Furthermore, the perforated twist-off plastic lids that are added after importation allow for easy use of any enclosed spices with the lid on, and repetitive and easy opening and closing of the lids for when greater or more exact portions are required. That they are filled with dry spices is also an indication of their suitability for reuse, as it makes them easier to clean and to maintain the contents free of spoilage (compare this to containers housing substances such as ketchup or mustards, which are disposed of indiscriminately). The consumer is thus less likely to discard the jars after use, but rather keep them as storage containers. Each of these jars has a form which indicates that it will be kept in the home, refilled repeatedly, and used to store and dispense spices. Thus, we are of the view that the expectation of the ultimate purchaser would be to save the jar after its contents have been used, as opposed to discarding or recycling the article.
The instant jars are imported empty and subsequently sold to distributors who pack them with spices and sell them with their contents at retail. Pictures included in the file indicate that the filled jars are typically sold alongside other spices in a typical supermarket spice display. Thus, the environment of sale and actual use of the instant jars is typical of containers of heading 7010, HTSUS. However, it is not the actual use of the specific goods which determines their classification; rather, it is the principal use of the class or kind of goods to which that merchandise belongs. To that end, we note that substantially identical glass spice jars are also sold directly to consumers at retail—they can be purchased at any home goods vendor or online retailer such as Bed Bath and Beyond or Amazon. See e.g., https://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Dkitchen&field-keywords=glass+spice+jars; http://www.containerstore.com/s/kitchen/1?q=spice%20jars; http://www.target.com/p/oggi-8-piece-round-airtight-glass-canister-and-spice-jar-set-with-stainless-steel-lids/-/A-16580058; https://www.bedbathandbeyond.com/store/s/spice-jar?isRedirect=true; http://www.crateandbarrel.com/search?query=spice+jar. Like the jars at issue in this classification request, the spice jars sold at retail are generally 3-4 oz, round or rectangular in shape, and feature similar twist-off, perforated lids. Customers fill these jars with spices or seasonings purchased separately or home-grown. Customers also use them to store and dispense their own custom blends. The environment of sale of the class or kind of jars to which this merchandise belongs is thus as a storage container.
The unit price of each jar at entry is listed as $0.06. We do not have any additional information on the price of the jars at retail when filled, and assume it varies according to their contents. Similar glass spice jars sold separately retail for roughly $15-$20 per dozen, or $1 to $1.66 per unit. Lacking specific information regarding the price of the instant jars when filled and sold at retail, or the price of similar jars at entry, we do not have sufficient information to determine the economic practicality of using the jars in the manner of a packing container of heading 7010 or as a storage container of heading 7013.
Finally, CBP has ruled consistently that glass spice jars in particular are classified in heading 7013, HTSUS. See HQ 961935, dated September 25, 1998; HQ 955544, dated March 31, 1994; HQ 089054, dated August 2, 1991; HQ 087727 September 21, 1990; NY N244139, dated August 2, 2013; NY N065020, dated July 10, 2009; NY L80215, dated November 8, 2004; NY K88761, dated September 9, 2004; NY I86173, dated September 20, 2002; NY I82249, dated June 20, 2002; NY G86112, dated January 24, 2001; and NY 883969, dated March 26, 1993. In HQ 087727 and HQ 955544, for example, CBP noted in particular that the ENs specifically name salt cellars as an example of glass table/kitchen articles of heading 7013, HTSUS, and that spice jars are similar to salt cellars in that they are used to store food material within the home.
In contrast, CBP has classified similar containers in heading 7010, HRSUS, when they were designed and sold as disposable, non-refillable items. See e.g., NY N272751, dated March 7, 2016, classifying a glass salt bottle with grinder in heading 7010, HTSUS.
Based on the foregoing, we find that the instant articles are not of a class or kind with containers used to pack and convey goods. Unlike the merchandise at issue in Latitudes Int'l Fragrance, Inc. v. United States, the instant spice jars are not containers specifically designed for the conveyance of spices; rather they are storage articles designed to store and disperse spices and seasonings. No special refill kits need be purchased to reuse the spice jars; they can be refilled easily, at any time, with any dry powder. Moreover, glass spice jars are also commonly sold empty at retail and filled by the individual purchaser.
The instant spice jars are of the class or kind of containers principally used for kitchen and table purposes. As such, they are classified under heading 7013, HTSUS.
HOLDING:
By application of GRI 1, the instant glass spice jars are classified in heading
7013, HTSUS, and specifically in subheading 7013.49.20, HTSUS, which provides for “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: Other: Valued not over $3 each.” The 2017 column one, general rate of duty is 22.5%.
Duty rates are provided for the internal advice applicant’s convenience and are
subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the public version of the decision available to CBP personnel, and to the public online at www.CBP.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division