CLA-2 R:C:M 957031 MMC
District Director
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044-3130
RE: PRD 2304-94-100126; other articles of glassware; vase; perfume bottle;
7013; 7020; ENS 70.20, 70.13 and 70.10; Kraft, Inc., v. United States, G.
Heilman Brewing Co. v. United States, United States v. Carborundum
Company; HRLs 953386, 953496, 953497, 953585, 953839, 953840, 953846,
95356, 953951
Dear District Director:
This is in response to Protest 2304-94-100126 which pertains to the tariff
classification of a glass article, described on protestant's invoice as a "glass
bottle", under the Harmonized Tariff Schedule of the United States (HTSUS). A
sample was submitted for our examination.
FACTS:
The merchandise is an empty glass bottle. It has an oval shaped body,
plateau style neck, and a flange style designed to accommodate a crimp-on
sprayer head. The flange's opening measures approximately «" wide and is
the only opening for the bottle. The bottle can contain approximately 4 liquid
ounces. Protestant states that the subject article is glassware for use as flower
holders. Various physical characteristics on the bottles, including mold seams
and manufacturing information, indicate that the bottles are produced by the
automatic machine method.
The entry of the glassware was liquidated on May 13, 1994, under
subheading 7010.90.30, HTSUS, as perfume bottles. In a protest timely filed on
June 14, 1994, protestant contends that the glass bottles are vases properly
classified under subheading 7020.00.00, HTSUS, as other glassware.
The headings under consideration are as follows:
7010 carboys, bottles, flasks, jars, pots, vias, ampules 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 glassware of a kind used for table, kitchen, toilet, office,
indoor decoration or similar purposes (other than that of
heading 7010 or 7018)
7020 other articles of glass
ISSUE:
Whether the bottles are classifiable under heading 7010, HTSUS, as glass
containers of a kind used for the conveyance of perfume or other toilet
preparations, or under heading 7013, HTSUS, as glassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar purposes, or under
heading 7020, HTSUS, as other articles of glass?
LAW AND ANALYSIS:
Protestant argues that the subject article is used as a flower holder and
therefore is classifiable under heading 7020, HTSUS, as other articles of glassware.
We disagree.
Classification of merchandise under the HTSUS is in accordance with the
General Rules of Interpretation (GRI's). 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 headings the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System may be
utilized. The ENs, although not dispositive, or legally binding, provide a
commentary on the scope of each heading of the HTSUS, and are generally
indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg.
35127, 35128 (August 23, 1989). EN 70.20, p. 945, states, in pertinent part, that:
This heading covers glass articles (including glass parts of articles) not
covered by other headings of this Chapter or other Chapters of the
Nomenclature...
En 70.13, p. 936, states, in pertinent part, that:
This heading covers the following types of articles, most of which are
obtained by pressing or blowing in molds:
...(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 centers
(other than those of heading 70.09), aquaria, incense burners, etc., and
souvenirs bearing views... (emphasis added).
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)...
Vases, also known as flower holders, are specifically provided for under heading
7013, HTSUS. Therefore, they are excluded from classification under heading
7020, HTSUS. We now must determine whether the subject article is classifiable
as a vase, for tariff purposes.
Heading 7013, HTSUS, is a use provision. There are two types of
classification by use:
(1) according to the actual use of the imported article; and
(2) according to the use of the class or kind of goods to which the
imported article belongs.
Tariff classification of goods controlled by actual use is specifically
provided for in sections 10.131-10.139, Customs Regulations [19 CFR 10.131-10.139]. According to these regulations, an actual use provision is satisfied if: (1)
such use is intended at the time of importation, (2) the article is so used, and (3)
proof of such use is furnished within three years after the date the article has
been entered. No language present in heading 7013, HTSUS, indicates that it is
an actual use provision.
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. However, in most instances, this type of
classification is inferred from the language used in a particular provision.
Heading 7013, HTSUS, contains, in pertinent part, the language "of a kind used
for". This language clearly indicates that this is a tariff provision controlled by use
according to the class or kind of goods to which the imported article belongs.
When 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:
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. In other words, the article's principal use at the time of
importation determines whether it is classifiable within a particular class or
kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria
for discerning the principal use of an article, it does not provide specific criteria
for individual tariff provisions.
However, the U.S. Court of International Trade (CIT) has provided factors,
which are indicative but not conclusive, to apply when determining whether
merchandise falls within a particular class or kind. They include: general physical
characteristics, the expectation of the ultimate purchaser, channels of trade,
environment of sale (accompanying accessories, manner of advertisement and
display), use in the same manner as merchandise which defines the class,
economic practicality of so using the import, and recognition in the trade of this
use. See: Kraft, Inc., v. United States, USITR, 16 CIT 483, (June 24,
1992)(hereinafter Kraft); G. Heilman Brewing Co. v. United States, USITR, 14 CIT
614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98,
C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.
Whether an article belongs to the class or kind, glassware of a kind used
for indoor decoration, provided for under heading 7013, HTSUS, is determined by
the application of Additional U.S. Rule of Interpretation 1(a), HTSUS, and the Kraft
factors. As a general rule, at the time of importation, an article's physical
characteristics will indicate its principal use and thus its classification within a
particular class or kind.
Customs is of the opinion, that at the time of importation, the physical
characteristics of the subject article indicate that it does not belong to the class
or kind "glassware principally used for indoor decoration" but rather to the class
or kind "containers, of glass, of a kind used for the conveyance or packing of
goods" provided for in heading 7010, HTSUS.
The subject article's opening, neck and flange are all physical
characteristics that are not consistent with that of a vase. Vases have large
openings to accommodate several stems and generally do not have necks
and flanges. Conversely, EN 70.10 (p. 933 - 934) states that:
...glass containers of the kinds commonly used commercially for the
conveyance or packing of liquids or of solid products (powders, granules,
etc.)...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(colorless, or tinted) by
pressure in a mold 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.
The subject article while not having a large opening, does have a short,
plateau neck, and a flange designed to hold a crimp-on sprayer head. 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 subheading 7010.90.20, HTSUS. See Headquarters Ruling Letters 953386,
953496, 953497, 953585, 953839, 953840, 953846, 95356 and 953951 dated April
22, 1993.
The empty glass perfume spray bottles are specifically provided for under
subheading 7010.90.20, HTSUS. They are containers of a kind principally used for
the conveyance or packing of perfume. Unlike the vases of heading 7013,
HTSUS, the subject bottles are not principally used for indoor decoration.
HOLDING:
The protest should be DENIED. 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.
In accordance with section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, this decision 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 this decision must
be accomplished prior to the mailing of the decision. Sixty days from the date
of this decision, the Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings Module in ACS
and to the public via the Diskette Subscription Service, Freedom of Information
Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division