[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