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HQ 952793




March 30, 1993

CLA-2 CO:R:C:M 952793 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7010.90.20

District Director of Customs
6269 Ace Industrial Dr.
P.O. Box 37260
Milwaukee, Wisconsin 53237

RE: Protest No. 3701-92-100018; milky white colored glass jars; GRI 1; U.S. Additional Note 1(a); subheading 7010.90.50, HTSUS

Dear District Director:

The following is our decision regarding Protest and Further Review No. 3701-92-100018, dated 3/13/92. The protest was filed against your liquidation of entries of milky white colored glass jars used to package "Carmex" lip balm under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise which is the subject of this protest, is a round milky white colored glass container capable of holding 7ml (1/4 oz.). The container is approximately 1 1/2 inch wide with a 3/4 inch base and a 1/3 inch screw threaded mouth. It is imported empty and then later filled with "Carmex" lip balm.

On advice from the appropriate national import specialist, you classified the glass jars under subheading 7010.90.20, HTSUS, which provides for 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: [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: [p]roduced by automatic machine.

The importer argues that the container should be classified under subheading 7010.90.50, HTSUS, which provides for 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 containers (with or without their closures). The rates of duty under these provisions are 3.7 percent and free, respectively.

ISSUE:

Are the containers classifiable as containers of a kind used for the conveyance or packing of perfume or other toilet preparations under subheading 7010.90.20, HTSUS, or as other glass containers under subheading 7010.90.50, HTSUS?

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

The protestant argues that the jar is classifiable under subheading 7010.90.50, HTSUS, because "Carmex", the lip balm placed in the container after importation, is a medicinal product, not a toilet preparation. However, the actual use of the container by the importer is not controlling. The size, shape, and mouth of the jar all indicate that it is a container of the kind used to hold toilet preparations. The jar itself is small enough to fit in a pocket, purse, or on a night stand and its beveled inside bottom makes it easier to remove the contents with a finger. At the time of importation, the jars are capable of holding a variety of creams and cosmetics and we believe this is the principle use of this kind of container. Because these jars are of the class or kind principally used for the packaging of toilet preparations we find the glass containers to be classifiable in subheading 7010.90.20, HTSUS.

HOLDING:

The empty glass containers were properly classified under subheading 7010.90.20, HTSUS. 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

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