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or withdrawn from a warehouse for consumption on or after February 2, 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