[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25153]


[[Page Unknown]]

[Federal Register: October 12, 1994]


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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