Tariff Classification of Imported Glassware

DEPARTMENT OF THE TREASURY

Customs Service

Tariff Classification of Imported Glassware

AGENCY: Customs Service, Treasury.

ACTION: Proposed change of practice; solicitation of comments.

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SUMMARY: This notice advises the public that Customs proposes a change

of practice regarding the tariff classification of three classes of

imported glassware: ``containers of glass used for the conveyance or

packing of goods'', ``preserving jars of glass'' and ``glassware of a

kind used for table or kitchen purposes''. The principal use of these

classes or kinds of glassware, whether it be conveying or packing solid

or liquid products, home canning or household storage, determines its

classification.

After intensive review of the three classes of imported glassware,

it has been determined advisable to set forth factors which Customs

proposes to use when determining whether merchandise falls within a

particular class or kind.

Customs proposes that ``containers of glass used for the conveyance

or packing of goods'' includes glass articles that are part of the

exchange or buying and selling of commodities that are principally used

to convey a product to a consumer who uses the product and then

discards the container.

Customs proposes that ``preserving jars of glass'' includes only

various glass articles which are the typical size and shape of ``Mason-

type'' jars. Because the U.S. Department of Agriculture (USDA) has

determined that glass jars with wire bails and glass caps (non ``Mason-

type'') are not recommended for home canning, and these type of jars

are often advertised and sold in sets of varying sizes for use in the

storage of dry goods in the home, Customs proposes to change its

practice of classifying them as ``preserving jars of glass'' to the

more appropriate class, glassware of a kind used for table or kitchen

purposes.

Finally, Customs proposes that the class ``glassware of a kind used

for table or kitchen purposes'' includes glass household storage

articles.

By this action, those rulings which are inconsistent with Customs

proposed change of practice would be revoked. Before adopting this

proposed change of practice, consideration will be given to any written

comments regarding the scope of all three of these classes (especially

the characteristics which are indicative of each class) which are

timely submitted in response to publication of this document.

DATES: Comments (preferably in triplicate) must be received on or

before December 12, 1994.

ADDRESSES: Written comments may be submitted to the U.S. Customs

Service, Office of Regulations and Rulings, Attention: Regulations

Branch, 1301 Constitution Ave. NW. (Franklin Court) Washington, DC

20229. Comments submitted may be inspected at the Regulations Branch,

Office of Regulations and Rulings, located at Franklin Court, 1099 14th

Street, NW. Suite 4000, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mary Beth McLoughlin, Metals and

Machinery Classification Branch, (202) 482-7030.

SUPPLEMENTARY INFORMATION:

Background

Customs proposes 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). This requires

an examination of subheadings 7010.90.50 and 7013.39, HTSUS.

The HTSUS subheadings 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: [o]ther: [o]ther containers (with or without their

closures)

7013.39 [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

Subheadings 7010.90.50 and 7013.39, HTSUS, are considered ``use''

provisions. There are two principal 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: [i]n the absence of special

language or context which otherwise requires-- (a) 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 current position regarding subheading 7010.90.50, HTSUS, is

in accord with the findings of the CIT in Group Italglass U.S.A. v.

United States, USITR, 17 CIT ______, Slip Op. 93-46 (Mar. 29, 1993).

Italglass held that the language of heading 7010, HTSUS, implicates use

as a criterion of classification for that entire heading, which

includes subheading 7010.90.50, HTSUS, and that principal use was the

controlling use. Additionally, the court held that the phrase ``of the

kind'' preceding the words ``used for'' did not constitute a special

language or context. See Sturm, Ruth, Customs Law and Administration,

vol. 2., sec. 53.3, p. 28.

Customs proposes no changes in this regard. Subheadings 7010.90.50

and 7013.39, HTSUS, would remain principal use provisions. Therefore,

for an imported good to be classifiable in either of these subheadings,

it must be of the class or kind of articles 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.

Based on the plain language of the provision, Customs is of the

opinion that subheading 7010.90.50, HTSUS, 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 understanding of the principal use of this class and the

factors which indicate acceptance of a particular article in the class,

is based on the Harmonized Commodity Description and Coding System

Explanatory Notes (ENs), relevant Headquarters Rulings Letters (HRLs)

and the Kraft case.

In understanding the language of the HTSUS, Customs consults the

ENs. The ENs, although not dispositive, provide a commentary on the

scope of each heading of the Harmonized System and are thus useful in

ascertaining the classification of merchandise. Customs believes that

they should be consulted for guidance in determining the proper

interpretation of the HTSUS. See T.D. 89-80, 54 FR 35127, 35128 (August

23, 1989). EN 70.10, pg. 933-934, states, in pertinent part, that:

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:

(A) Carboys, demijohns, bottles (including syphon vases), phials

and similar containers, of all shapes and sizes, used as containers

for chemical products (acids, etc.) beverages, oils, meat extracts,

perfumery preparations, pharmaceutical products, inks, glues, etc.

These articles, formerly produced by blowing, are now almost

invariably manufactured by machines which automatically feed molten

glass into moulds where the finished articles are formed by the

action of compressed air. They are usually made of ordinary glass

(colourless or coloured) although some bottles (e.g., for perfumes)

may be made of lead crystal, and certain large carboys are made of

fused quartz or other fused silica * * *

These containers remain in this heading even if they are ground,

cut, sand-blasted, etched or engraved, or decorated (this applies,

in particular, to certain perfume or liqueur bottles), banded,

wickered or otherwise trimmed with various materials (wicker, straw,

raffia, metal, etc.); they may also have tumbler-caps fitted to the

neck. They may be fitted with drop measuring devices or may be

graduated, provided that they are not of a kind used as laboratory

glassware.

(B) Jars, pots and similar containers for the conveyance or

packing of certain foodstuffs * * *, pharmaceutical products, * * *

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

screwstoppers.

In HRL 087359, dated August 8, 1990, Customs explained the phrase

``commercially used to convey'', as used in the ENs, when referring to

the class of glass containers commercially used to convey solid or

liquid products. The ruling stated, in pertinent part, that:

The key phrase in this instance is ``commonly used commercially

for the conveyance'' of liquids. The root word of ``commercially''

is commerce which is described as the exchange or buying and selling

of commodities. Webster's Third New International Dictionary, (1986)

and The Random House Dictionary of the English Language, (1983). The

root word of ``conveyance'' is convey which is described as to

carry, bring or take from one place to another; transport; bear. The

Random House Dictionary of the English Language, (1983) and

Webster's Third New International Dictionary, (1986).

Based on this ruling, Customs current position is that the principal

use for the class ``containers used for the conveyance or packing of

goods'' is that glass articles of this class be part of the exchange or

buying and selling of commodities, and be used to convey or pack a

product to a consumer who then uses the product and discards the

container.

After reviewing the Kraft case, the ENs and the relevant HRLs,

Customs believes that together, they provide 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 (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. 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 current position is 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 packing or

conveyance of goods''.

Kraft discussed a container's ability to be used in the ``hot

packing'' process as a possible indicator that a particular container

was of a kind used for the packing or conveyance of goods. However, it

is Customs understanding that most glassware is capable of being used

in the ``hot packing'' process. Therefore, 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 packing or conveyance of goods.

Customs proposes to continue to apply the standards outlined above

with one addition. The proposed addition involves glass containers

imported without their corresponding caps or lids. Based on

observations of importations, Customs proposed position is that ``glass

containers imported without their corresponding caps or lids'' is an

additional physical characteristic that indicates that particular

containers will be used for the conveyance or packing of goods.

We realize that subheading 7010.90.50, HTSUS, provides for

containers imported with or without their lids. However, Customs

proposed position is that whether containers are, or are not, imported

with lids is a distinct indication of their use.

Preserving Jars of Glass

Customs present position regarding the class ``preserving jars of

glass'' is that it provides for various articles which are the typical

size and shape of ``Mason-type'' jars. Whether a particular glass jar

is a preserving jar is presently determined on a case-by-case basis.

Customs does, however, consider volumes of between .23 liters and 2.2

liters and a shape and height of a typical Mason jar (e.g., not multi-

sided) to be indicative, but not conclusive, physical characteristics

of a preserving jar.

This understanding is based on relevant HRLs and the ENs. In HRL

087727, dated September 21, 1990, Customs ruled that the class

``preserving jars of glass is limited to merchandise in the sizes and

shapes of typical `Mason-type' preserving jars which hold the volumes

typical of preserve jars (i.e., one half pint to one half gallon).''

Additionally, EN 70.10 pg. 933-934, states, in pertinent part, that

``[t]he heading also includes preserving jars of glass''.

Preserving jars are not defined in the heading or ENs. 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). The term

``preserving'' is described, in pertinent part, as ``[t]o prepare food

for future use, as by canning or salting; to treat fruit or other foods

so as to prevent decay''. Webster's II New Riverside University

Dictionary, (1984).

Based upon the above definition, the U.S. Department of

Agriculture, Extension Service, Complete Guide to Home Canning: Guide 1

Principles of Home Canning (Agricultural Information Bulletin No. 539-

1, May 1989), and consultation with members of the home canning trade,

Customs proposed position is that the principal use for the class

``preserving jars of glass'' is jars purchased and used for home

canning only. Further, Customs understands that 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 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. These physical criteria are

based on Customs understanding of the U.S. Department of Agriculture,

Extension Service, Complete Guide to Home Canning: Guide 1 Principles

of Home Canning (Agricultural Information Bulletin No. 539-1, May

1989), pgs. 14-15 and discussion with members of the trade.

Additionally, on page 11 of the above mentioned bulletin, under the

subtitle ``Equipment and methods not recommended'', this publication

indicates that jars with wire bails and glass caps and one-piece zinc

porcelain lined caps are not recommended for home canning. We note that

these ``non Mason-type'' jars are often advertised and sold in sets of

varying sizes for use in the storage of goods in the home. Thus, it is

Customs proposed position that they are classifiable under subheading

7013.39, HTSUS.

Under Customs proposed position, the only type of glass article

classifiable as part of the class or kind ``preserving jars of glass'',

would be regular and wide-mouth ``Mason-type'', threaded, home-canning

jars with self-sealing lids. Glass articles with wire bails and glass

or porcelain caps or lids would not be 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 is of the

opinion that subheading 7013.39, HTSUS, provides for the class

``glassware of a kind used for table or kitchen purposes''.

Customs position is based on exemplars from EN 70.13, which we

believe demonstrate that the class ``glassware of a kind used for table

or kitchen purposes'' provides for certain glass articles principally

used for household storage. EN 70.13, pg. 936-937, states, in pertinent

part, that:

[T]his heading covers the following types of articles, most of

which are obtained by pressing or blowing in moulds:

(1) [T]able 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 * * *

Customs understands that the exemplars listed are articles

principally used to hold or store other articles in the home. We

believe that among these articles, certain glass storage jars may also

be principally used in this fashion. Therefore, glass articles which

are principally used to store articles in the home are classifiable

under subheading 7013.39, HTSUS.

After reviewing the ENs, relevant HRL's, and applying the principal

use factors, which are indicative but not conclusive, for determining

whether merchandise falls within a particular class or kind, Customs

has identified the following characteristics which we believe are

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 colourless, coloured 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.

This understanding is based on the above cited EN and relevant

HRLs. HRL 953282, dated February 16, 1993, classified a 1 liter glass

jar decorated with a blue ribbon and decalmania which created a country

motif band in blue, pink, green and yellow around the middle of the

jar. Customs held that, while the container did convey goods, its

decoration, lid, and environment of sale all indicated that the

principal use of the container was for storage, not the conveyance of

goods. See also, HRL 087727, dated September 21, 1990, which classified

spice jars as household storage jars.

Customs proposes to continue to apply the standards outlined above.

We note that due to the USDA report's recommendation that glass

articles with wire bale and trigger closures (non ``Mason-type'') not

be used for home canning, but rather as storage articles for dry

ingredients, all glass articles with wire bale trigger closures and

glass caps or lids will be classifiable under subheading 7013.39,

HTSUS.

However, we note that there are glass articles capable of both

conveyance or packing of goods and household storage, as demonstrated

in the Kraft case. Instances of these types of articles will be

reviewed on a case-by-case basis, with the above outlined

characteristics determining the article's principal use and

classification.

Authority

This notice is published in accordance with section 177.10(c),

Customs Regulations (19 CFR 177.10(c)).

Comments

In accordance with the above discussion, Customs is now seeking

comments from the public regarding the proposed change of practice with

regards to the tariff provisions for all three of these classes of

glass articles. Customs is especially interested in receiving comments

regarding the characteristics that are indicative of each class.

Before adopting this proposed change in practice, consideration

will be given to any written comments timely submitted to Customs.

Comments submitted will be available for public inspection in

accordance with the Freedom of Information Act (5 U.S.C. 552),

Sec. 1.4, Treasury Department Regulations (31 CFR 1.4), and

Sec. 103.11(b), Customs Regulations (19 CFR 103.11 (b)), on regular

business days between the hours of 9:00 a.m. and 4:30 p.m. at the

Regulations Branch, U.S. Customs Service, Office of Regulations and

Rulings, Franklin Court, 1099 14th Street, N.W., Suite 4000, Washington

D.C.

Dated: September 23, 1994.

George J. Weise,

Commissioner of Customs.

John W. Mangels,

Acting Deputy Assistant Secretary of the Treasury.

[FR Doc. 94-25153 Filed 10-11-94; 8:45 am]

BILLING CODE 4820-02-P