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HQ 956780




October 20, 1994
CLA-2 CO:R:C:M 956780 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.30

District Director
U.S. Customs Service
4430 E. Adamo Drive
Rm: STE 301
Tampa, Fl 33605

RE: Protest 1801-94-100016; glass bottles; perfume bottles; EN 70.13; NYRL 841833

Dear District Director:

The following is our response to protest 1801-94-100016 concerning your action in classifying and assessing duty on various glass bottles under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and a catalog with pictures of representative bottles were included.

FACTS:

The articles in question are described in the submitted catalog as Egyptian perfume bottles. There are approximately 180 different styles varying in size, color and ornamentation, however all are made of hand-blown, hand-painted glass and have ground glass stoppers; most have dabbers. Some contain minimal amounts of genuine gold applications. Others have intricate cut glass patterns. The bottles range in height from approximately 4" to 18" tall.

The merchandise was entered under subheading 7013.99.30, HTSUS, as perfume bottles fitted with ground glass stoppers. However, the entries were liquidated on February 25, 1994, under subheading 7013.39.50, HTSUS, as glassware of a kind used for indoor decoration. The protest was timely filed on April 28, 1994.

ISSUE:

Are the subject bottles classifiable as perfume bottles with ground glass stoppers or as other glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Heading 7013, HTSUS, provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. Customs considers it to be a "use" provision. 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. Heading 7013, HTSUS, by expressly providing for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes", is one of them.

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.

For purposes of this protest we must first determine whether the bottles are of a kind of glassware principally used for table, kitchen, toilet, office, indoor decoration or similar purposes. In an effort to determine if the bottles are provided for under heading 7013, HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

EN 70.13, pg. 936-937, states, in pertinent part, that:

This 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...

(4) Glassware for indoor decoration and other glassware (including that for churches and the like), such as vases, ornamental fruit bowls, statuettes, fancy articles (animals, flowers, foliage, fruit, etc.), table centres (other than those of heading 70.09), aquaria, incense burners, etc., and souvenirs, bearing views.

These articles may be e.g., of ordinary glass, lead crystal, 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 coulourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles). Table centres consisting of a simple mirror are, however, excluded (see Explanatory Note to heading 70.09).

According to the Ens, both perfume bottles and glass decorative fancy articles are provided for under heading 7013, HTSUS. We believe that the subject bottles are either one or the other. Therefore they are described by heading 7013, HTSUS.

Heading 7013, is further divided into many subheadings, two of which prima facia describe the subject bottles. The subheadings under consideration are as follows:

7013.99.30 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: Other: Other: Smokers' articles; perfume bottles fitted with ground glass stoppers

7013.99.50 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: Other: Other: Valued over $0.30 but not over $3 each

GRI 6, HTSUS, provides in pertinent part, that the classification of goods in subheadings of the same heading shall be according to the terms of those subheadings and any related subheading notes and, by appropriate substitution of terms, according to GRIs 1 through 5, on the understanding that only subheadings at the same level are comparable. Inasmuch as the subject bottles are prima facie described in two different subheadings, they cannot be classified according to GRI 1.

When goods cannot be classified by applying GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's are applied.

GRI 3 states, in pertinent part, that when goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.

The language of subheading 7013.99.30, HTSUS, clearly indicates that all perfume bottles with ground glass stoppers are described by the subheading. Neither the subheading or the relevant EN provide any size limitations. Additionally, protestant has submitted catalogs and affidavits from retailers which indicate that all styles are principally used as perfume bottles. As protestant's counsel notes, with regard to any size bottle, in most cases the dabber extends all the way down near the bottom of the bottle and therefore, only a small amount of fragrance is needed to make the bottle useable. Alternatively, subheading 7013.99.50, HTSUS, merely provides for all other articles, within a certain value range, which do not meet the description provided by other subheadings. See New York Ruling Letter 841883 dated June 22, 1989, in which other empty perfume bottles with ground glass stoppers were classified under subheading 7013.99.30, HTSUS.

We are of the opinion that subheading 7013.99.30, HTSUS, provides the most specific description of the bottles. Therefore, they are classifiable under that subheading.

HOLDING:

The perfume bottles are classifiable under subheading 7013.99.30, HTSUS, as perfume bottles with ground glass stoppers, with a column one rate of duty of 9 percent ad valorem.

The protest should be granted. In accordance with Section 3A (11) (b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module, ACS, and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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