[Federal Register Volume 61, Number 2 (Wednesday, January 3, 1996)]
[Notices]
[Pages 223-229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31593]
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DEPARTMENT OF THE TREASURY
Customs Service
[T.D. 96-7]
Tariff Classification of Imported Glassware
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Change of practice.
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SUMMARY: This document sets forth Customs position regarding the scope
of three classes of imported glassware: ``containers of glass used for
the conveyance or packing of goods'', ``preserving jars of glass'' and
``glass storage articles''. As part of Customs efforts to clearly and
completely inform importers with regard to classification issues, it
has been determined advisable to set forth guidelines which Customs
will consider when determining whether merchandise falls within a
particular class or kind of glassware.
EFFECTIVE DATE: Any changes in tariff classification resulting from the
implementation of these guidelines and any revocation of inconsistent
rulings will be effective regarding merchandise entered for consumption
or withdrawn from a warehouse for consumption on or after February 2,
1996.
FOR FURTHER INFORMATION CONTACT: Mary Beth McLoughlin, Metals and
[[Page 224]]
Machinery Classification Branch, Office of Regulations and Rulings
(202) 482-7030.
SUPPLEMENTARY INFORMATION:
Background
By notice published in the Federal Register (59 FR 51659) on
October 12, 1994, Customs proposed a change of practice involving the
tariff classification of three classes of imported glass articles under
the Harmonized Tariff Schedule of the United States (HTSUS). That
notice examined subheadings 7010.90.50 and 7013.39, HTSUS, which read
as follows:
7010.90.50 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)
7013.39 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
There are two types of classification by use:
(1) according to the use of the class or kind of goods to which the
imported article belongs; and
(2) according to the actual use of the imported article.
Use according to the class or kind of goods to which the imported
article belongs is more prevalent in the tariff schedule. A few tariff
provisions expressly state that classification is based on the use of
the class or kind of goods to which the imported article belongs.
However, in most instances, this type of classification is inferred
from the language used in a particular provision.
If an article is classifiable according to the use of the class or
kind of goods to which it belongs, Additional U.S. Rule of
Interpretation 1(a), HTSUS, 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. In other words, the article's principal use at the time of
importation determines whether it is classifiable within a particular
class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides
general criteria for discerning the principal use of an article, it
does not provide specific criteria for individual tariff provisions.
However, the U.S. Court of International Trade (CIT) has provided
factors, which are indicative but not conclusive, to apply when
determining whether merchandise falls within a particular class or
kind. They 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: Kraft, Inc., v. United States, USITR, 16 CIT 483, (June
24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States,
USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum
Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied,
429 U.S. 979.
Tariff classification of goods controlled by actual use is
specifically provided for in sections 10.131-10.139, Customs
Regulations [19 CFR 10.131-10.139]. According to these regulations, an
actual use provision is satisfied if: (1) such use is intended at the
time of importation, (2) the article is so used, and (3) proof of such
use is furnished within three years after the date the article has been
entered.
Currently, tariff classification under both subheading 7010.90.50
and 7013.39, HTSUS, is determined by the use of the class or kind of
articles to which the imported merchandise belongs. As such, they are
considered provisions controlled by Additional U.S. Rule of
Interpretation 1(a), HTSUS.
Customs proposed that subheadings 7010.90.50 and 7013.39 would
remain principal use provisions. Therefore, for an imported good to be
classifiable in either of these subheadings, it must be of a class or
kind classifiable in these subheadings. Whether it is of the class or
kind of articles classifiable in either subheading will be determined
by its principal use. Principal use will, in turn, be determined by the
specific criteria formulated to determine to what class or kind the
imported goods belong.
In formulating the criteria, Customs considered its prior
headquarters ruling letters and court cases, comments from the public
and the Harmonized Commodity Description and Coding System Explanatory
Notes (ENs). The ENs, although not dispositive, or legally binding,
provide a commentary on the scope of each heading of the HTSUS, and are
generally indicative of the proper interpretation of the HTSUS. See,
T.D. 89-90, 54 FR 35127, 35128 (August 23, 1989). Based on the plain
language of the provision, Customs proposed that subheading 7010.90.50
includes the classes ``glass containers of a kind used for the
conveyance or packing of goods'' and ``preserving jars of glass''.
Containers of a Kind Used for the Conveyance or Packing of Goods
Customs proposed understanding of the principal use of this class
and the factors which indicate acceptance of a particular article in
the class, was that together, they provided specific identifiable
characteristics which are indicative, but not conclusive of whether a
particular glass article qualifies as part of the class ``containers of
glass of a kind used for the conveyance or packing of goods''. These
characteristics would include, containers, of all shapes and sizes:
1. Generally having a large opening, a short neck (if any) and as a
rule, a lip or flange to hold the lid or cap, made of ordinary glass
(colorless or colored) and manufactured by machines which automatically
feed molten glass into molds where the finished articles are formed by
the action of compressed air;
2. In which the ultimate purchaser's primary expectation is to
discard the container after the conveyed or packed goods are used;
3. Sold from the importer to a wholesaler/distributor who then
packs them with goods;
4. Sold in an environment of sale that features the goods packed in
the jar and not the jar itself;
5. Used to commercially convey foodstuffs, beverages, oils, meat
extracts, etc.;
6. Capable of being used in the hot packing process; and
7. Recognized in the trade as used primarily to pack and convey
goods to a consumer who then discards the container after this initial
use.
Customs proposed that the physical characteristics of a particular
glass article are the primary indicator of whether it belongs to the
class ``containers of a kind used for the conveyance or packing of
goods''. Additionally, we noted that whether a particular container is
capable of being used in the ``hot packing'' process, is of limited
utility when determining whether it is classifiable as a container of a
kind used for the conveyance or packing of goods. Finally, Customs
proposed one additional factor: that glass containers imported without
their corresponding caps or lids was a physical characteristic that
indicates that particular containers will be used for the conveyance or
packing of goods.
[[Page 225]]
Preserving Jars of Glass
Customs proposed that the principal use for the class ``preserving
jars of glass'' is jars purchased and used for home canning only.
Further, there are identifiable characteristics that are indicative,
but not conclusive of the principal use of glass jars classifiable as
``preserving jars of glass''.
These would include glass articles of any shape that are between
.23 and 2.2 liter sizes, and are the shape and height of regular and
wide-mouth ``Mason-type'', threaded, home-canning jars with self-
sealing lids. Generally, the standard jar mouth opening is about 2\3/8\
inches with wide mouth jars having 3 inch openings. ``Mason-type'' jars
have narrower sealing surfaces and are tempered less than most
commercial pint and quart-size jars. The common self-sealing lid
consists of a flat metal lid held in place by a metal screw band during
processing. The flat lid is crimped around its bottom edge to form a
trough, which is filled with a colored gasket compound. Glass articles
with wire bails and glass or porcelain caps or lids were considered not
classifiable as ``preserving jars of glass'' as their physical
characteristics do not allow them to be recommended for home canning
use.
Glassware of a Kind Used for Table or Kitchen Purposes: Glass
Storage Articles
Based on the plain language of the heading, Customs stated that
subheading 7013.39 provides for the class ``glassware of a kind used
for table or kitchen purposes''. This class includes articles
principally used to hold or store other articles in the home.
Furthermore, among these articles, certain glass storage jars may also
be principally used in this fashion. Therefore, Customs proposed that
glass articles which are principally used to store articles in the home
are classifiable under subheading 7013.39 and identified the following
characteristics which were indicative, but not conclusive of glassware
of a kind used for table or kitchen purposes; glass household storage
articles. They are glass articles:
1. Made of ordinary glass, lead crystal glass, 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 colorless, colored or of flashed glass, and may be cut,
frosted, etched or engraved;
2. Having a decorative motif consistent with a kitchen decor (e.g.,
geese, ``country theme'', etc.);
3. Which the consumer purchases primarily to use for storage in the
home;
4. Sold from the importer to a wholesaler/distributor who then
sells them to a retailer;
5. Sold in an environment of sale that emphasizes the article's use
or reuse as a storage article;
6. Sold to the ultimate purchaser empty;
7. Which are recognized in the trade as primarily having a
household storage use; and
8. Which are imported with their caps or lids.
Analysis of Comments
Six comments were received in response to the notice, four from
importing interests and two from domestic manufacturers of glassware.
Substantive legal arguments contained in the comments are discussed
below.
Relative Specificity of Headings 7010 and 7013
Regarding the classification of glass articles capable of both
conveyance or packing of goods and household storage, a commenter has
suggested that the question of classification is determined not by a
use comparison, but by the specific statutory exclusion of articles
classifiable in heading 7010 from classification in heading 7013.
According to the commenter, the language in heading 7013 excludes all
merchandise described in heading 7010. Therefore, heading 7013's
relative specificity is well indicated by the statutory language
itself.
Customs agrees that the language of heading 7013 excludes from
classification articles classifiable in heading 7010. However, that
language is qualified by the holding of Group Italglass U.S.A. v.
United States, 17 CIT 226. In that case, the CIT specifically held
that: ``[t]he language in heading 7010, `of a kind used for' explicitly
invokes use as a criterion for classification and under heading 7010
principal use is controlling.'' Id at 228. As both headings contain the
language `of a kind used for', Customs position is that the principal
use of a particular article will determine whether it belongs to one of
the classes or kinds described by heading 7010, or heading 7013.
Principal use of a particular article will, in turn, be determined by
the specific criteria formulated for the classes or kinds described in
headings 7010 and 7013.
Should it be determined that the principal use of a particular
article indicates it is classifiable within a class or kind provided
for in heading 7010 the language of heading 7013 precludes that
particular article from classification in heading 7013. Should it be
determined that the principal use of a particular article indicates
that it does not belong to a class or kind provided for in heading
7010, it is not precluded from classification in heading 7013.
Containers of a Kind Used for the Conveyance or Packing of Goods
Application of the Proposed Criteria
Several commenters indicated concern that the various criteria
provided would be applied as ``bright line'' rules.
Customs position is that generally, the principal use criteria
provided are merely characteristics, indicators of, or tools to
indicate, whether a specific piece of glassware is principally used in
the same manner as the class or kind the criteria describe.
Additionally, the statement that the principal use criteria are merely
indicative and not conclusive, clearly demonstrates that the
characteristics are guidelines and not a ``litmus test'' or ``bright
line'' rules for classification purposes.
As a general rule, a glass article's physical form will indicate
its principal use and thus to what class or kind it belongs. Examples
of characteristics indicative, but not conclusive of, the physical form
of articles belonging to the class or kind ``containers of a kind used
for the conveyance or packing of goods'' are enumerated in EN 70.10 and
under the ``physical characteristics'' criteria. Should, however, an
exception arise and an article's physical form does not indicate to
what class or kind it belongs or its physical form indicates it belongs
to more than one class or kind, Customs considers the other enumerated
principal use criteria.
Physical Description
It has been suggested that the first criterion, the physical
characteristics of the class ``containers of glass used for the
conveyance or packing of goods'' is too narrow for the entire class.
Rather, the entire class includes 4 different types of containers used
for the commercial conveyance of liquid and solid products. These types
are described in the ENs to heading 7010, and include:
(A) Carboys, demijohns, bottles (including syphon vases), phials,
and similar containers * * * of all shapes and sizes * * * used as
containers for * * * (see list).
(B) Jars, pots, and similar containers * * * used for the
commercial conveyance of certain foodstuffs, cosmetic or toilet preps,
pharmaceutical products, polishes, cleaning preps, etc.
[[Page 226]]
(C) Ampoules usually obtained from drawn glass and intended to
serve after sealing as containers for serums, etc.
(D) Tubular containers and similar containers.
Additional descriptions of how each kind of container or jar is
produced, its typical closure design and decorative features are
included in these breakouts. Based on these expressed concerns, it has
been suggested that reference to the ENs with an explanation, should
replace this criterion. Customs agrees with the commenters'
observations and reiterates its position that the physical description
provided in the proposed notice, together with the descriptions found
in EN 70.10, are indicative, but not conclusive, physical
characteristics of glass articles belonging to the class ``containers
of a kind used for the conveyance or packing of goods''.
Ultimate Purchaser's Expectation
A commenter has suggested that this criterion be eliminated because
the language ``***discard containers after use'' prevents recyclable
containers from classification as containers of a kind used for the
conveyance or packing of goods.
Customs position is that for heading 7010 purposes, the term
``discards'' in the phrase ``. . . to convey or pack a product to a
consumer who uses the product and then discards the container''
includes glass articles otherwise described as ``containers'' which are
``discarded'' for recycling.
Importer-Wholesaler/Distributor
A commenter has suggested that this criterion is a misapplication
of Additional U.S. Rule of Interpretation 1(a) because it refers to the
distribution by ``importers''. The commenter indicates that Additional
U.S. Rule 1(a) states that review applies to all goods of the class or
kind, whether imported or not. Additionally, the commenter contends
that this criterion suggests the application of actual use to the
classification of glassware. Finally, the commenter requests guidance
on what evidence Customs would expect importers to provide regarding
channels of trade.
Customs agrees with the comments regarding Additional U.S. Rule of
Interpretation 1(a). Additionally, Customs position is that this
criterion is an explanation of the pattern or channel of trade that
goods of this class generally follow. While not all goods of this class
follow this channel of trade, Customs believes that enough do for this
pattern to be considered indicative but not conclusive of articles
belonging to the class. Finally, Customs believes evidence will be
solicited on a case-by-case basis.
Environment of Sale/Channel of Trade
According to one commenter, this criterion ignores the commercial
realities of the food and beverage market in that containers are often
a vehicle used by the packager to differentiate its product from
others.
The classification of merchandise under the HTSUS is governed by
the General Rules of Interpretation (GRIs). GRI 1, states, in pertinent
part, that for legal purposes, classification shall be determined
according to the terms of the headings and any heading or chapter
notes. While the ``commercial realities'' of the glass container market
may require redesign of glass articles, for tariff classification
purposes, the application of the GRIs together with Additional U.S.
Note 1(a), requires that if the article's form is altered in a way that
no longer indicates it is principally used as a container, it must be
reclassified. While, as one of its uses, a glass article may be used to
pack and convey a good to a consumer, that use must be its principal
one for it to belong to the class ``glass articles of a kind used for
the conveyance or packing goods''.
Lids
Commenters claim that Customs addition of a factor relating to the
importation of lids with containers is in direct conflict with the
statutory language of heading 7010, which states, in pertinent part,
*** ''with or without their lids''. They believe that the heading
language makes it clear that Congress intended that closures be
disregarded when determining the class of a given container.
Additionally, use of this criterion could lead to a container being
classified differently depending upon whether it was imported with or
without a lid. Finally, they assert that this is, in effect, an actual
use test.
Instead of reviewing lids, the commenters suggest considering a
container's finish, the portion of the container where the cap or lid
will be attached. Designs include threaded, beaded and a variety of
other finishes. Because closures are created to match standard
finishes, the commenters suggest that the proposed criterion should
state that all containers with a ``standard finish'' are classifiable
as containers used for the conveyance or packing of goods. The
commenters agree that it is generally true that containers for the
conveyance or packing of goods are imported without their lids. They
believe, however, that there is a danger of undue focus on the presence
or absence of a lid, as a lid's presence or absence is one of the
easily identifiable criteria. Finally, this criterion would increase
the possibility that drinking glasses which are always imported without
lids, would be classified incorrectly.
Finally, one commenter has requested that Customs clarify its
distinction by stating that the absence of lids or caps is only a
``plus'' factor pointing toward classification in heading 7010, but
that the presence of a lid or cap in no way points against heading 7010
classification. The commenter then suggests that ultimately, the
absence or presence of a lid does not affect the ``reusablitity'' or
``function'' of a container and therefore should not carry much weight
in determining a container's classification.
After careful consideration of the comments, Customs withdraws this
criterion.
Preserving Jars of Glass
Class or Kind vs. eo nomine
One commenter disagrees with Customs characterization of preserving
jars of glass as a use provision and instead claims that the provision
is eo nomine. According to the commenter, the general rule for
classification under an eo nomine provision is that the provision
includes all forms of the named article. The commenter further states
that bail and trigger jars are well known in commerce as having been
designed for use in the preserving of foodstuffs. Therefore, it is
irrelevant whether the jars are principally used as such.
As previously discussed in the relative specificity section,
Customs position is that Italglass requires the application of
principal use to all classes in heading 7010.
Scope of the Class ``Preserving Jars of Glass''
Another commenter argues that Customs definition of preserving jars
of glass as home canning jars is too restrictive. Customs definition
was: to prepare food for future use, as by canning or salting to treat
fruit or other foods so as to prevent decay. The commenter suggests a
broader definition: preserving means ``food preservation''. Food
preservation should be defined as the protection of food from spoilage.
Therefore, any glass container used to protect food from spoilage is a
preserving jar.
Customs is of the opinion that its proposed definition is the
common dictionary and trade definition of preserving. Customs does not
agree with
[[Page 227]]
the commenter's definition of preserving as it is entirely too broad.
EN 70.10's inclusion of the phrase ``* * * Jars, pots, and similar
containers * * * used for the commercial conveyance of certain
foodstuffs'' clearly indicates that not all glass articles capable of
protecting food from spoilage belong to the class ``preserving jars of
glass''. This language and application of the ENs clearly indicate that
the commenter's broad definition was not the intent of the EN drafters.
Furthermore, Congress' adoption of a separate class for preserving
jars, clearly demonstrates their intent to narrow the scope of both the
conveyance and packing provision and the preserving jar provision.
USDA Bulletin
Several commenters state that Customs should not rely on the U.S.
Department of Agriculture, Extension Service, Complete Guide to Home
Canning: Guide 1 Principals of Home Canning (Agricultural Information
Bulletin No. 539-1, May 1989), [USDA bulletin] because it does not
explain why bail and trigger jars are not recommended for home canning.
They suggest that replacement gaskets may no longer be manufactured for
use with the jars and that a higher risk of contamination exists with
these jars because they have to be sealed by pushing down the clamp
after being removed from the canner. Also, reliance on the USDA
pamphlet is severely limited by the findings of Nestle Refrigerated
Food Co. v. United States, U.S. CIT, Slip Op. 94-118 (July 20, 1994).
The court stated that administrative interpretations not related to
tariff purposes are not determinative of Customs classification
disputes. Reference is also made to different sources on preserving
which indicate bail and trigger jars are usable for home canning
purposes. One commenter suggests that the following should be the
standards for preserving jars:
1. The jars are specifically designed, as evidenced by patents or
other reliable documents, for use as home canning or preserving jars;
2. Instructions for using the jars in the home preserving process
are provided; and
3. Rubber seals or lids are readily available at the start of each
home canning season from the sources where the consumer purchased the
jars.
Customs position is that reliance on the USDA bulletin does not
conflict with the holding of Nestle Refrigerated Food Co. v. United
States. The definition of preserving, was not provided by the USDA
bulletin, but rather by consulting the dictionary and the common and
commercial meaning. A tariff term that is not defined in the HTSUS or
in the ENs is construed in accordance with its common and commercial
meaning. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673
F.2d 380 (1982). Common and commercial meaning may be determined by
consulting dictionaries, lexicons, scientific authorities and other
reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673
F.2d 1268 (1982). Customs has cited the USDA bulletin because various
home canning nutritionists and food scientists consulted stated that
the USDA bulletin provided the guidelines that home canners, and those
who create the necessary jars, rely on to create the preserves as well
as the jars themselves.
Moreover, Customs has independently reviewed the scientific studies
relied upon for the conclusion drawn regarding wire and bail trigger
glass jars in the USDA bulletin. Customs position is that the
scientific evidence supports the conclusion that wire bail and trigger
jars should not be principally used as home canning jars. Therefore,
the jars cannot be classified as such.
Glassware of a Kind Used for Table or Kitchen Purposes: Glass
Storage Articles
Scope of Heading 7013
One commenter states that Customs misunderstands the scope of
heading 7013. That commenter believes that none of the exemplars in EN
70.13 relate to the holding or storage of any article in the home.
Rather, the commenter contends that all but one of the articles listed
in EN 70.13(1) are articles which are used to prepare and serve food.
Therefore, glass household storage articles are not classifiable in
heading 7013.
As further evidence that glass household articles are not
classifiable in heading 7013, the commenter cites to heading 6911 and
claims that headings 7013 and 6911 are ejusdem generis and therefore
their ENs should ``mirror'' each other. However, the commenter notes,
EN 69.11, specifically provides for storage jars. Because EN 70.13 does
not, the commenter believes it was the drafters intent to omit glass
household storage articles from heading 7013. The commenter suggests
that the drafters clearly included ceramic preserving jars and storage
jars within the scope of headings 6911 and 6912, and excluded them from
heading 6909. According to the commenter, the similarity to the
exemplars in ENs 69.11, 69.12 and 70.13 is striking. Therefore, the
omission of preserving and storage jars from EN 70.13 is significant.
The commenter believes that glass storage jars are included in the
scope of glass preserving jars and states that this follows from the
fact that the storage of food products prevents spoilage (drawing
moisture, infestation with vermin, etc.).
Customs position is that the exemplars from EN 70.13 are merely
that, examples. They are not all inclusive. Additionally, Customs
believes that the following EN 70.13 exemplars all are used to store
various food stuffs or articles in the home:
(1) Table or kitchen glassware, e.g. * * * decanters, infants'
feeding bottles, pitchers, jugs, * * * cake-stands, * * * butter
dishes, oil or vinegar cruets, * * * salt cellars, * * * sweetmeat
boxes, graduated kitchenware, * * * ice-buckets.
Furthermore, Customs believes that the commenter's direct comparison of
the ENs 69.09, 69.11 and 69.12 to 70.10 and 70.13 was clearly not the
intent of the EN authors. Were that the authors' intent, they would
have applied the ENs for headings 69.09 and 69.13 mutatis mutandis to
those of headings 70.10 and heading 70.13.
Customs position is that heading 7013 provides for glass storage
articles within the class glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar purposes.
Decorative Motif
One commenter was concerned because many household storage articles
are very simple, strictly utilitarian and have no decorative motif.
Because the criterion of a decorative motif is objective and easily
determined, the commenter contends that there is a risk of it being
given undue importance or becoming the sole criterion. Additionally,
examples of specific decorative motifs are unacceptable because of a
danger that household storage jars having unlisted motifs will be
misclassified. Therefore, criterion 2 should be eliminated and the
following be added to criterion 1: ``painted or otherwise having a
decorative motif''. Customs agrees with the comment and has made the
change.
Distribution Channels
One commenter was concerned about this criterion because while it
may identify the most common distribution channels for articles
imported for ultimate sale in the retail market, it excludes articles
imported directly by large retail chains.
[[Page 228]]
Customs recognizes that the distribution channel described is a
general rule and does not preclude from consideration for this class
glassware distributed through other channels.
Lids
One commenter states that Customs lid criterion creates the
expectation that heading 7013 articles are always imported with their
lids. Although it is true that glass containers imported for use in
conveying or packing goods are generally imported without their lids,
it does not follow that table or kitchen storage containers are
necessarily imported with their lids. The commenter believes the only
clear statement that can be made about lids is that glass household
storage articles are imported without their lids less frequently than
are containers for the conveyance or packing of goods. As previously
noted, this criterion has been withdrawn.
Conclusion
After careful review and consideration of all the comments received
in response to the notice of proposed position, a review of Customs
implementation of its prior understanding of the 3 classes and a review
of Customs rulings, Customs adopts, with some modification, its
proposed position.
Subheadings 7010.90.50 and 7013.39; Relative Specificity
Based on the Italglass holding, Customs concludes that the language
``of a kind used for'' explicitly indicates that the principal use of a
particular article will determine whether it belongs to one of the
classes or kinds described by heading 7010 or heading 7013. Principal
use of a particular article will, in turn, be determined by the
specific criteria formulated for the classes or kinds described in
headings 7010 and 7013.
Should it be determined that the principal use of a particular
article indicates it is classifiable within a class or kind provided
for in heading 7010, the language of heading 7013 precludes that
particular article from classification in heading 7013. Should it be
determined that the principal use of a particular article indicates
that it does not belong to a class or kind provided for in heading
7010, it is not precluded from classification in heading 7013.
Containers of a Kind Used for the Conveyance or Packing of Goods
Customs concludes that as a general rule, a glass article's
physical form will indicate its principal use and thus to what class or
kind it belongs. Examples of physical forms indicative, but not
conclusive of, articles belonging to the class or kind ``containers of
a kind used for the conveyance or packing of goods'' are enumerated in
EN 70.10 and under the ``physical characteristics'' criterion. When an
exception arises and an article's physical form does not indicate to
what class or kind it belongs or its physical form indicates it belongs
to more than one class or kind, Customs considers the other enumerated
principal use criteria.
Customs concludes that generally, the principal use criteria
provided are merely characteristics, indicators of, or tools to
indicate, whether a specific piece of glassware is principally used in
the same manner as the class or kind the criterion describe. Further,
Customs adopts the following criteria as indicative, but not conclusive
of whether a particular glass article qualifies as part of the class
``containers of glass of a kind used for the conveyance or packing of
goods'':
1. Generally having a large opening, a short neck (if any) and as a
rule, a lip or flange to hold the lid or cap, made of ordinary glass
(colourless or coloured) and 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. Sold from the importer to a wholesaler/distributor who then
packs the container with goods;
4. Sold in an environment of sale that features the goods packed in
the container and not the jar itself;
5. Used to commercially convey foodstuffs, beverages, oils, meat
extracts, etc.;
6. Capable of being used in the hot packing process; and
7. Recognized in the trade as used primarily to pack and convey
goods to a consumer who then discards the container after this initial
use.
Preserving Jars of Glass
Customs concludes that the term ``preserving'' is described, in
pertinent part, as ``to prepare food for future use, as by canning or
salting; to treat fruit or other foods so as to prevent decay''.
Based upon the above definition, the reliance on the guidelines
espoused in the U.S. Department of Agriculture, Extension Service,
Complete Guide to Home Canning: Guide 1 Principals of Home Canning
(Agricultural Information Bulletin No. 539-1, May 1989), by various
home canning nutritionists and food scientists consulted, and an
independent review of the scientific evidence the USDA guidelines are
based upon, Customs concludes that there are identifiable
characteristics that are indicative, but not conclusive of the
principal use of glass jars classifiable as ``preserving jars of
glass''. They include glass articles that are between .23 and 2.2 liter
sizes and are the shape, round or square, (eg: not multi-sided, faceted
or decorated) and height of regular and wide-mouth ``Mason-type'' jars.
Generally, the standard jar mouth opening is about 2\3/8\ inches
with wide mouth jars having 3 inch openings. ``Mason-type'' jars have
narrower sealing surfaces and are tempered less than containers
belonging to the class ``containers of a kind used for the conveyance
or packing of goods''. The common self-sealing lid consists of a flat
metal lid held in place by a metal screw band during processing. The
flat lid is crimped around its bottom edge to form a trough, which is
filled with a colored gasket compound.
Customs concludes, therefore, that jars with wire bail and trigger
closures are not included within the scope of the class ``preserving
jars of glass'' but rather within the scope of the class ``glassware of
a kind used for table or kitchen purposes'' classifiable under heading
7013. The physical form of the wire bail and trigger jar indicates its
principal use as a storage article.
Glassware of a Kind Used for Table or Kitchen Purposes: Glass
Storage Articles
Customs concludes that as a general rule, a glass article's
physical form will indicate its principal use and thus to what class or
kind it belongs. Examples of physical forms indicative, but not
conclusive of, articles belonging to the class or kind ``containers of
a kind used for the conveyance or packing of goods'' are enumerated in
EN 70.13 and under the ``physical characteristics'' criterion. When an
exception arises and an article's physical form does not indicate to
what class or kind it belongs or its physical form indicates it belongs
to more than one class or kind, Customs considers the other enumerated
principal use criteria.
Customs concludes that heading 7013 includes the class ``glass
storage articles''. Additionally, Customs adopts the following
principal use criteria:
1. Made of ordinary glass, lead crystal glass, glass having a low
coefficient of expansion (e.g., borosilicate glass) or of glass
ceramics (the latter two in particular, for kitchen glassware). They
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may also be colorless, colored or of flashed glass, and may be cut,
frosted, etched, engraved, painted or otherwise have a decorative
motif.
2. The consumer purchases primarily to use for storage;
3. Sold from the importer to a wholesaler/distributor who then
sells them to a retailer;
4. Sold in an environment of sale that emphasizes the article's use
or reuse as a storage article;
5. Sold to the ultimate purchaser empty; and
6. Recognized in the trade as primarily having a storage use.
Effect on Rulings: This document revokes Headquarters Ruling
Letters, 951721 dated January 12, 1993; 952675 dated January 15, 1993;
953280 dated February 5, 1993; 951991 dated March 2, 1993; 954293 dated
June 30, 1993; 954792 dated November 24, 1993; 953952 dated September
21, 1994, and any other rulings which are not consistent with these
guidelines.
EFFECTIVE DATE: Any changes in tariff classification resulting from the
implementation of these guidelines and any revocation of inconsistent
rulings will be effective regarding merchandise entered for consumption
or withdrawn from a warehouse for consumption on or after February 2,
1996.
George J. Weiss,
Commissioner of Customs.
Approved: November 29, 1995.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 95-31593 Filed 12-29-95; 1:41 pm]
BILLING CODE 4820-02-P
