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HQ 957853



February 27, 1996

CLA RR:TC:MM 957853 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9405.50.40; 7013.99.30

Port Director
U.S. Customs Service
6 World Trade Center
New York, New York 10048

RE: Protest 1001-95-100667; candle holders; perfume bottles with ground glass stoppers; EN 70.13; HRL 957654; NYRL 841833

Dear Port Director:

The following is our response to protest 1001-95-100667 concerning your action in classifying and assessing duty on various 4"and 5" diameter global shaped glass candle holders and perfume bottles under the Harmonized Tariff Schedule of the United States (HTSUS). Samples and a catalog with pictures the articles were included. In preparing this ruling, consideration was given to supplemental submissions made by counsel on behalf of the protestant dated September 8, 1995, as well as arguments presented at a meeting at Customs Headquarters.

The issue concerning the classification of the global shaped candle holders is whether they are classifiable as non-electrical lamps and lighting fittings under subheading 9405.50.40, HTSUS, or as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes under subheading 7013.99.50, HTSUS.

Enclosed is a copy of HQ 957654 of this date, which dealt with the classification of similar global shaped glass candle holders. As you will note, that ruling contains an extensive analysis of the relevant law and reasons for our holding that the subject articles are classifiable under subheading 9405.50.40, HTSUS.

Following the reasoning under HQ 957654, it is our position that the candle holders which are the subject of this protest are also classifiable under subheading 9405.50.40, HTSUS.

FACTS:

The articles are glass perfume bottles styles 227106, 227107 and 227108. Pictures, as well as samples of the articles indicate they consist of smooth clear glass with various colored ground glass stoppers. Additionally, protestant submitted laboratory reports which provided the lead percentage of each stopper and body in question. In a February 6, 1996, memorandum the Customs Office of Laboratories and Scientific Services reviewed the submitted lab report and provided the following:

Style Lead Percentage Lead Monoxide
Percentage
Stopper/ Body Stopper/ Body

227106 0.62 mg/kg (ppm) 0.71 mg/kg (ppm) .000066/.000076

227107 0.32 mg/kg (ppm) 0.48 mg/kg (ppm) .000033/.000050

227108 0.83 mg/kg (ppm) 1.06 mg/kg (ppm) .000089/.000114

The merchandise was entered under subheading 7013.99.30, HTSUS, as perfume bottles fitted with ground glass stoppers. The entries were liquidated on October 28 and November 4, 1994, under subheading 7013.91.30, HTSUS, as lead crystal glassware valued over $3 but not over $5 each. The protest was timely filed on January 26, 1995. The subheadings under consideration are as follows:

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

7013.91.30 Other glassware: Of lead crystal: Valued over $3 but not over $5 each

7013.99.30 Other glassware: Other: Other: Smokers' articles; perfume bottles fitted with ground glass stoppers

7013.99.50 Other glassware: Other: Other: Valued over $0.30 but not over $3 each

ISSUE:

Are the subject bottles classifiable as perfume bottles with ground glass stoppers, other glassware or as lead crystal glassware?

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.

For purposes of this protest we must first determine whether the bottles are made of lead crystal. Subheading Note 1 to Chapter 70, HTSUS, states, in pertinent part, that:

For the purposes of subheadings 7013.21, 7013.31 and 7013.91, the expression "lead crystal" means only glass having a minimum lead monoxide (PbO) content by weight of 24 percent.

According to analysis of protestant's submitted lab report provided by the Customs Office of Laboratory and Scientific Services, the percentage of lead monoxide for all subject articles is extremely low. The lead monoxide percentages do not meet the subheading note requirement. This, together with the submitted perfume bottle's physical appearance, indicates that the articles are not composed of lead crystal. Therefore, they are not classifiable as other glassware of lead crystal.

Heading 7013 provides for 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 facie describe the subject bottles, subheading 7013.99.30 and 7013.99.50, HTSUS.

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 samples which indicate that all styles are principally used as perfume bottles. 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 protest should be GRANTED. 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% ad valorem. The subject candle holders are classifiable under subheading 9405.50.40, HTSUS, as non- electrical lamps and lighting fittings, with a column one duty rate of 7% ad valorem.

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
Tariff Classification Division

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