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