Tariff Classification of Imported Glassware

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or withdrawn from a warehouse for consumption on or after February 2,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.

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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.

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(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