HQ 952675: Protest No. 1001-91-107794; Glass Storage Jars; Headings 7010 and 7013; Subheading 7010.90.50; ENs 70.10 and 70.13; Additional U.S. Rule of Interpretation 1(a); HQs 087727, 088020, 089054 and 951721

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 952675

                        January 15, 1993



CLA-2 CO:R:C:M 952675 EJD

CATEGORY:   Classification

TARIFF NO:  7013.39.20

Ms. Jean F. Maguire
Area Director
U.S. Customs Service
6 World Trade Center
New York, New York   10048-0945

RE:  Protest No. 1001-91-107794; Glass Storage Jars; Headings
     7010 and 7013; Subheading 7010.90.50; ENs 70.10 and 70.13;
     Additional U.S. Rule of Interpretation 1(a); HQs 087727,
     088020, 089054 and 951721

Dear Ms. Maguire:

     This is in response to the Application for Further Review of
Protest no. 1001-91-107794, undated, which pertains to the tariff
classification of glass storage jars under the Harmonized Tariff
Schedule of the United States (HTSUS).


FACTS:

     The glass storage jars are multisided glass articles of
various sizes, shapes, forms and volumes, with air-tight rubber
seals and metal loop fastener closures.  These glass storage jars
include:  a 2 liter spaghetti jar of over eight inches in height;
a 1 liter jar; a .75 liter jar; a 1.5 liter jar; and a 2 liter
jar.

     The importer contends that the merchandise is classifiable
under subheading 7010.90.50, HTSUS, which provides for containers
or preserving jars.  You maintain that the merchandise is
household storage jars classifiable under subheading 7013.39.20,
HTSUS, which provides for table/kitchen glassware.


ISSUE:

     Are the glass jars classified in subheading 7010.90.50,
HTSUS, or in subheading 7013.39.20, HTSUS?


LAW AND ANALYSIS:

     The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRIs), taken in order.  GRI
1 provides that classification shall be determined according to
the terms of the headings and any relative section or chapter
notes.

     Headings 7010 and 7013, HTSUS, are both considered "use"
provisions.  Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides:
     
     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." 
     (Emphasis added.) 

     The two competing headings for these glass containers are
the following:

     Heading 7010, HTSUS, which provides for "[c]arboys, bottles,
flasks, jars, pots, vials, ampoules and other containers, of
glass, of a kind used for the conveyance or packing of goods 
* * *"

     Heading 7013, HTSUS, provides for "[g]lassware of a kind
used for table, kitchen, toilet, office, indoor decoration or
similar purposes (other than that of headings 7010 or 7018)."

     The importer believes that the glass container should be
classified under subheading 7010.90.50, HTSUS, which provides for
"[c]arboys, bottles, flasks, jars, pots, vials, ampoules and
other containers, of glass, of a kind used for the conveyance or
packing of goods * * * [o]ther...[o]ther containers (with or
without their closures)."  

     The Explanatory Notes (ENs) of the Harmonized Commodity
Description and Coding System (HCDCS) constitute the Customs
Cooperation Council's official interpretation of the Harmonized
System.  They provide a commentary on the scope of each heading
of the Harmonized System and are thus useful in ascertaining the
classification of merchandise under the system.  ENs, although
not dispositive, are to be looked to for the proper
interpretation of the HTSUS.  54 Fed. Reg. 35127, 35128 (1989).

     EN 70.10 states that "[t]his heading covers all glass
containers of the kinds commonly used commercially for conveyance
or packing of liquids or solid products (powders, granules,
etc.)."  HCDCS, p.933.  EN 70.10 further states that "[t]h[is]
heading does not include: * * * (c) [d]ecanters, drinking glasses
and other glass containers being domestic glassware (heading
70.13), but not containers used primarily for the commercial
conveyance or packing of goods."  HCDCS, p. 934.  

     EN 70.13 states that: 

          This heading covers the following types of
     articles, most of which are obtained by pressing or
     blowing in moulds:  

     (1) Table or kitchen glassware, e.g. drinking glasses,
     goblets, tankards, decanters, infants' feeding bottles,
     pitches, 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-pot 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. 

                             *  *  *

          These articles may be e.g., of ordinary glass, lead
     crystal, glass having low coefficient of expansion (e.g.,
     borosilicate glass) or of glass ceramics (the latter two in
     particular, for kitchen glassware). 

                            *  *  * 

          The heading also excludes:

                            *  *  * 

     (b)  Bottles, flask, jars and pots of a kind commonly used
          for the commercial conveyance or packing of goods, and
          preserving jars (heading 70.10).

                            *  *  * 

HCDCS, p. 936-936a.

     Numerous glass articles used to hold food product within the
home are not classified as jars in subheading 7010.90.50, HTSUS,
but are considered to be household storage articles classifiable
as table/kitchenware in subheading 7013.39, HTSUS.  For example,
in Headquarter Ruling Letters (HQ) 087727, dated September 21,
1990, Customs defined preserve jars.  "Preserve jars classifiable
in Heading 7010, HTSUSA, should be limited to merchandise in the
sizes and shapes of typical "Mason"-type to preserve jars which
hold the volumes typical of preserve jars (i.e., one half pint
through one half gallon)."

     Multisided storage articles are not considered preserving
jars.  They are household storage articles classifiable under
subheading 7013.39, HTSUS, not heading 7010, HTSUS.  One of the
subject articles include spaghetti jars which are too tall to be
regarded as preserving jars.  Spaghetti jars are generally
classified as household storage articles under subheading
7013.39, HTSUS.  

     In HQ 088020, dated January 14, 1991, Customs classified
similar glass storage jars with a metal loop fastener closure and
a rubber ring seal.  HQ 088020 indicated that only items which
are too tall, have unusual shapes (e.g., multisided) or hold
volumes greater that held by the prototypical preserve jar may
not be classified as preserve jars in heading 7010, HTSUS.  These
glass storage jars were classifiable under subheading 7013.39.20,
HTSUS, which provides for glassware of a kind used for kitchen
glassware of a kind used for kitchen purposes other than that of
glass-ceramics, other, other, valued not over $3 each.

     HQ 089054, dated August 2, 1991, dealt with the
classification of various glass items, including cobalt blue
glass storage jars used to hold bath salts, bath crystals and
other materials.  We ruled that these cobalt blue glass storage
jars were principally used to hold food material and were
classifiable as storage articles under subheading 7013.39.20,
HTSUS.   See also HQ 951721, dated January 8, 1993.

     The subject glass jars are akin to the jars discussed above. 
They do not function as containers (i.e., they are not used to
pack or convey merchandise destined for the consumer).  They are
shaped and sized differently than commercial jars used to
preserve food.  In addition, the lids would not seal the jars
sufficiently to be used to preserve food or commercially.  They
are not disposable containers.  

     It is our position that the jars at issue are household jars
that are used to hold food.  They are similar to may of the
articles listed in EN 70.13, HTSUS, as they are functional for
storing of articles of food.  The glass jars are, therefore,
classified in heading 7013, HTSUS.  Specifically, they are
articles used to hold food product within the home which are
classifiable as table/kitchenware under subheading 7013.39,
HTSUS.  The eight digit subheading will vary depending on the
value of the jars.

     Finally, we note that it has come to our attention from the
Assistant Chief Counsel's office that merchandise similar to the
subject glass jars are the subject of pending litigation before
the Court of International Trade in Group Italglass U.S.A., Inc.
v. United States.  Consequently, until this litigation is
resolved, protests regarding the classification of this
merchandise should be denied.


HOLDING:

     The protest should be denied.  A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.

     
                                   Sincerely,




                                   John Durant, Director
                                   Commercial Rulings Division