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HQ 953386

April 22, 1993

CLA-2 CO:R:C:M 953386 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.20

Area Director
U.S. Customs Service
J.F.K. Airport
Building 178
Jamaica, NY 11430

RE: IA 82/92; Empty Glass Perfume Spray Bottles; Explanatory Notes 70.10, 70.13, and 96.16; Los Angeles Tile Jobbers, Inc. v. U.S.; 546; 545; Additional U.S. Rule of Interpretation 1(a); Heading 9616; 7013.99.40

Dear Area Director:

This is in response to your memorandum of December 9, 1992 (CLA-2-K:C:A2 GS), requesting internal advice concerning the tariff classification of empty glass perfume spray bottles under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of empty glass perfume spray bottles. These bottles are designed with a "lip" to accommodate a crimp-on sprayer head. After importation, the glass bottles are filled with various fragrances, fitted with sprayer heads, and sold at retail. The bottles are produced by the automatic machine method and are intended to be disposed of rather than refilled.

The headings under consideration are as follows:

7010: [c]arboys, 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.

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

ISSUE:

Whether the bottles are classifiable under heading 7010, HTSUS, as glass containers of a kind used for the conveyance or packing of perfume or other toilet preparations, or under heading 7013, HTSUS, as glassware of a kind used for toilet purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 70.10 (p. 933 - 934) states that:

[t]his 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:

(B) Jars, pots and similar containers for the conveyance or packing of certain foodstuffs (condiments, sauces, fruit, preserves, honey, etc.), cosmetic or toilet preparations (face creams, hair lotions, etc.), pharmaceutical products (ointments, etc.), 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 screw stoppers.

Like bottles, these articles may be sand-blasted, cut, etched or engraved, decorated, banded, etc. . .

The heading does not include:

(g) Bottles, flasks, etc. for scent sprays (heading 70.13), scent sprays (heading 96.16), and vacuum flasks and other vacuum vessels (heading 96.17).

In part, Explanatory Note 70.13 (pp. 936 - 937) states that:

[t]his heading covers the following types of articles most of which are obtained by pressing or blowing in moulds:

(2) Toilet articles, such as soap-dishes, sponge baskets, liquid soap distributors, hooks and rails (for towels, etc.), powder bowls, perfume bottles, parts of toilet sprays (other than heads) and toothbrush holders. . .

The heading also excludes:

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

Counsel for the importer contends that under GRI 1, these empty glass perfume spray bottles are specifically described under heading 7010, HTSUS, and are specifically precluded from classification under heading 7013, HTSUS, by reason of the legal text of heading 7013, HTSUS, and of Explanatory Note 70.13(b). It is also claimed that the exclusionary language under Explanatory Note 70.10 applies only to the reusable and decorative glass perfume spray bottles which utilize screw top atomizer mechanisms.

On the other hand, it is argued that the exclusionary language under Explanatory Note 70.10 is all encompassing and glass scent spray bottles are classifiable under heading 7013, HTSUS. Specifically, it is claimed that the subject bottles are classifiable under subheading 7013.99.40, HTSUS, which provides for: "[o]ther glassware: [o]ther: [o]ther: [o]ther: [v]alued not over $0.30 each."

Since the inception of the HTSUS, entries of empty glass perfume spray bottles with lips to accommodate crimp-on sprayer heads have consistently been liquidated under heading 7010, HTSUS. Specifically, they have been liquidated under subheading 7010.90.20, HTSUS, which provides for: ". . . bottles . . . of glass: [o]ther: [c]losures imported separately; containers (with or without their closures) of a kind used for the conveyance or packing of perfume or other toilet preparations; other containers if fitted with or designed for use with ground glass stoppers: [p]roduced by automatic machine."

Previously, under the Tariff Schedules of the United States (TSUS), a distinction was made between the decorative and reusable perfume bottles and the bottles of a kind used for the conveyance or packing of perfume.

Item 545, TSUS (the precursor to heading 7010, HTSUS), provided for:

[c]ontainers (except ampoules) chiefly used for the packing, transporting, or marketing of merchandise, and containers chiefly used for home canning and preserving, all the foregoing, of glass, with or without their closures and whether or not coated with plastic materials.

Item 546, TSUS (the precursor to heading 7013, HTSUS), provided for:

[a]rticles chiefly used in the household or elsewhere for preparing, serving, or storing food or beverages, or food or beverage ingredients; smokers' articles, household articles, and art and ornamental articles, all the foregoing not specially provided for.

In Los Angeles Tile Jobbers, Inc. v. U.S. C.D. 3904 (1969), it was stated that:

[t]he types of "glassware" intended to be classified under [item 546] . . . are definitely discussed in the current series, entitled Summaries of Trade and Tariff Information, Prepared in Terms of the [TSUS], released by the United States Tariff Commission on August 8, 1968, as follows:

Description and uses

This summary covers a great variety of glass articles chiefly used in the household or elsewhere for preparing, serving, or storing food or beverages (or food or beverage ingredients). It also includes other glass household items, smokers' articles, and art and ornamental objects. For the purposes of this summary, the term "household glassware" is used to describe collectively the items herein.

Household glassware is produced in a wide range of styles, sizes, colors, qualities, and prices. Commercially, the most important items are tumblers, goblets, other stemware, cups, plates, saucers, miscellaneous tableware, ash trays, fancy perfume bottles 1, vases, and the art and ornamental pieces. . .

1. Empty bottles sold primarily for decorative value. Bottles as commercial containers for perfume are covered in a summary on items 545.11 and 545.17 in this volume.

Therefore, under the TSUS, commercial containers for perfume and perfume bottles sold for decorative value were classified differently. Empty decorative perfume bottles are sold empty and then filled with various fragrances. When the fragrance is emptied, the decorative bottle is refilled. This is the purpose of purchasing a decorative perfume bottle. The purchaser wants to enjoy the long term decorative value of the bottle as it is repeatedly filled with perfume.

Decisions under the TSUS are not dispositive in interpreting the HTSUS. However, on a case-by-case basis they should be considered instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. H. Conf. Rep. No. 576, p.550. In this instance, because it is our position that the legal text of the HTSUS is ambiguous as to what type of bottle is precluded from classification under heading 7010, HTSUS, and therefore does not indicate a dissimilar interpretation, we find that previous decisions under the TSUS are instructive.

Additional U.S. Rule of Interpretation 1(a), HTSUS, states that:

1. In 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.

Both heading 7010, HTSUS, and heading 7013, HTSUS, are use provisions. Based upon the classification of the articles under the HTSUS and the TSUS, it is our position that the subject bottles are of a kind principally used for the commercial conveyance or packing of perfume. The bottles are disposable and are used merely as packaging for perfume to be sold at retail.

It has been suggested that if the bottles are to be classified under heading 7010, HTSUS, then they cannot be considered bottles for scent sprays of heading 9616, HTSUS. We agree. In no event are bottles without spray mechanisms classifiable under heading 9616, HTSUS. In part, heading 9616, HTSUS, provides for:

[s]cent sprayers and similar toilet sprayers, and mounts and heads therefor . . .

In part, Explanatory Note 96.16 (p. 1612) states that:

[t]his heading covers:

(1) Scent, brilliantine and similar toilet sprays, whether of the table or pocket type, and whether for personal or professional use. They consist of a reservoir, generally in the form of a bottle (of glass, plastics, metal or other material), to which is fixed the mount; this mount incorporates the head (with its spray-forming mechanism) and a pneumatic pressure bulb (sometimes enclosed in a textile net) or a piston device. . .

The heading does not apply to:

(a) Reservoirs (bottles, flasks, etc.) for scent sprays, presented separately (classified according to constituent material). (emphasis supplied).

We find that heading 9616, HTSUS, covers both reusable and decorative atomizer perfume bottles, based upon the description under Explanatory Note 96.16. Therefore, reusable glass reservoirs for scent sprays of heading 9616, HTSUS, would be classifiable under heading 7013, HTSUS.

It is our position that the exclusionary language under Explanatory Note 70.10 only precludes the reusable and decorative perfume bottles from classification under heading 7010, HTSUS.

The empty glass perfume spray bottles are specifically provided for under subheading 7010.90.20, HTSUS. They are containers of a kind used for the conveyance or packing of perfume. Unlike the reusable perfume bottles of heading 7013, HTSUS, the subject bottles are not meant to be reused and are intended to be disposed of after the perfume is emptied.

HOLDING:

The empty glass perfume spray bottles are classifiable under subheading 7010.90.20, HTSUS, as glass containers of a kind used for the conveyance or packing of perfume or other toilet preparations. The general, column one rate of duty is 3.7 percent ad valorem.

You should advise the internal advice applicant of this decision.

Sincerely,

Harvey B. Fox, Director
Office of Regulations and Rulings

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